The Civil Procedure (Amendment No.3) Rules 2005

• Citation: S.I. 2005/2292
• Sections: 73

Section 1 Citation, commencement and interpretation

These Rules may be cited as the Civil Procedure (Amendment No.3) Rules 2005 and shall come into force—

(a) for the purposes of rules 11(a), 14, 16 and 19(a) on 6th April 2006;

(b) for the purposes of rules 50, 51 and 52 on 21st October 2005;

(c) for all other purposes, and for the purpose of this rule, on 1st October 2005.

Section 2 Citation, commencement and interpretation

In these Rules—

(a) a reference to a Part or rule by number alone means the Part or rule so numbered in the Civil Procedure Rules 1998 ;

(b) a reference to an Order by number and prefixed by “ RSC ” means the RSC Order so numbered in Schedule 1 to those Rules; and

(c) a reference to an Order by number and prefixed by “ CCR ” means the CCR Order so numbered in Schedule 2 to those Rules.

Section 3 Amendment to the Civil Procedure Rules 1998

In rule 3.1, after sub-paragraph (l), insert—

(ll) order any party to file and serve an estimate of costs;

Section 4 Amendment to the Civil Procedure Rules 1998

In rule 3.3(7), after “an application”, insert “(including an application for permission to appeal or for permission to apply for judicial review)”.

Section 5 Amendment to the Civil Procedure Rules 1998

In rule 3.7—

(a) in sub-paragraph (4)(i), for “the claim shall be struck out” substitute “the claim will automatically be struck out without further order of the court”; and

(b) in sub-paragraph (6)(a), for “the claim shall be struck out” substitute “the claim will automatically be struck out without further order of the court”.

Section 6 Amendment to the Civil Procedure Rules 1998

After rule 3.7 insert—

(3.7A)

(1) This rule applies where a defendant files a counterclaim without—

(a) payment of the fee specified by the relevant Fees Order; or

(b) making an application for an exemption from or remission of the fee.

(2) The court will serve a notice on the defendant requiring payment of the fee specified in the relevant Fees Order if, at the time the fee is due, the defendant has not paid it or made an application for exemption or remission.

(3) The notice will specify the date by which the defendant must pay the fee.

(4) If the defendant does not—

(a) pay the fee; or

(b) make an application for an exemption from or remission of the fee,

by the date specified in the notice, the counterclaim will automatically be struck out without further order of the court.

(5) Where an application for exemption from or remission of a fee is refused, the court will serve notice on the defendant requiring payment of the fee by the date specified in the notice.

(6) If the defendant does not pay the fee by the date specified in the notice, the counterclaim will automatically be struck out without further order of the court.

(7) If—

(a) the defendant applies to have the counterclaim reinstated; and

(b) the court grants relief,

the relief will be conditional on the defendant either paying the fee or filing evidence of exemption from payment or remission of the fee within the period specified in paragraph (8).

(8) The period referred to in paragraph (7) is—

(a) if the order granting relief is made at a hearing at which the defendant is present or represented, 2 days from the date of the order;

(b) in any other case, 7 days from the date of service of the order on the defendant.

Section 7 Amendment to the Civil Procedure Rules 1998

After rule 3.7A insert—

Sanctions for dishonouring cheque

(3.7B)

(1) This rule applies where any fee is paid by cheque and that cheque is subsequently dishonoured.

(2) The court will serve a notice on the paying party requiring payment of the fee which will specify the date by which the fee must be paid.

(3) If the fee is not paid by the date specified in the notice—

(a) where the fee is payable by the claimant, the claim will automatically be struck out without further order of the court;

(b) where the fee is payable by the defendant, the defence will automatically be struck out without further order of the court,

and the paying party shall be liable for the costs which any other party has incurred unless the court orders otherwise.

(Rule 44.12 provides for the basis of assessment where a right to costs arises under this rule)

(4) If—

(a) the paying party applies to have the claim or defence reinstated; and

(b) the court grants relief,

the relief shall be conditional on that party paying the fee within the period specified in paragraph (5).

(5) The period referred to in paragraph (4) is—

(a) if the order granting relief is made at a hearing at which the paying party is present or represented, 2 days from the date of the order;

(b) in any other case, 7 days from the date of service of the order on the paying party.

(6) For the purposes of this rule, “claimant” includes a Part 20 claimant and “claim form” includes a Part 20 claim.

Section 8 Amendment to the Civil Procedure Rules 1998

In rule 5.4—

(a) for paragraph (3), substitute—

(3) A party to proceedings may, unless the court orders otherwise, obtain from the records of the court a copy of any document listed in paragraph 4.2A of the Practice Direction.

(b) in sub-paragraph (5)(a)(i), after “a claim form,”, insert “but not any documents filed with or attached to or intended by the claimant to be served with such claim form,”.

Section 9 Amendment to the Civil Procedure Rules 1998

After rule 6.1, for the cross-reference, substitute—

(For service in possession claims, see Part 55).

Section 10 Amendment to the Civil Procedure Rules 1998

In rule 6.4—

(a) in paragraph (1), for “paragraph (2)”, substitute “paragraphs (2) and (2A)”; and

(b) after paragraph (2), insert—

(2A) In civil proceedings by or against the Crown, as defined in rule 66.1(2), documents required to be served on the Crown may not be served personally.

Section 11 Amendment to the Civil Procedure Rules 1998

In rule 6.5—

(a) in paragraph (2), after “A party must give an address for service within the jurisdiction.”, insert—

Such address must include a full postcode, unless the court orders otherwise.

(Paragraph 2.4 of the Practice Direction to Part 16 contains provision about the content of an address for service).

(b) after paragraph (7), insert—

(8) In civil proceedings by or against the Crown, as defined in rule 66.1(2)—

(a) service on the Attorney General must be effected on the Treasury Solicitor;

(b) service on a government department must be effected on the solicitor acting for that department as required by section 18 of the Crown Proceedings Act 1947.

(The practice direction to Part 66 gives the list published under section 17 of that Act of the solicitors acting for the different government departments on whom service is to be effected, and of their addresses).

Section 12 Amendment to the Civil Procedure Rules 1998

In rule 6.7(1), after “A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table”, omit “(Rule 2.8 excludes a Saturday, Sunday, a Bank Holiday, Christmas Day or Good Friday from calculations of periods of 5 days or less)”.

Section 13 Amendment to the Civil Procedure Rules 1998

For rule 6.11, and for the heading “Notice of non-service”, substitute—

Notification of outcome of postal service by the court

(6.11) Where—

(a) a document to be served by the court is served by post; and

(b) such document is returned to the court,

the court must send notification to the party who requested service stating that the document has been returned.

Notice of non-service by bailiff

(6.11A) Where—

(a) the court bailiff is to serve a document; and

(b) the bailiff is unable to serve it,

the court must send notification to the party who requested service.

Section 14 Amendment to the Civil Procedure Rules 1998

After rule 6.13 insert—

(Paragraph 2.4 of the Practice Direction to Part 16 contains provision about the content of an address for service).

Section 15 Amendment to the Civil Procedure Rules 1998

In rule 6.20, paragraph (16)—

(a) for the heading “Claims by the Inland Revenue”, substitute “Claims by HM Revenue and Customs”; and

(b) for “Commissioners of the Inland Revenue”, substitute “Commissioners for HM Revenue and Customs”.

Section 16 Amendment to the Civil Procedure Rules 1998

After rule 9.2 insert—

(Paragraph 10.6 of the Practice Direction to Part 16 contains provision about the content of the admission, defence or acknowledgment of service).

Section 17 Amendment to the Civil Procedure Rules 1998

In rule 10.3(2)—

(a) at the end of sub-paragraph (a), omit “and”; and

(b) at the end of sub-paragraph (b), insert—

; and

rule 6.21(4) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).

Section 18 Amendment to the Civil Procedure Rules 1998

In rule 11(7)—

(a) at the end of sub-paragraph (a), omit “and”; and

(b) at the end of sub-paragraph (b), insert—

; and

the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.

Section 19 Amendment to the Civil Procedure Rules 1998

In rule 12.4—

(a) in sub-paragraph (2), after “where rule 12.9 or rule 12.10 so provides”, insert—

,

and where the defendant is an individual, the claimant must provide the defendant’s date of birth (if known) in Part C of the application notice.

(b) after paragraph (3), insert—

(4) In civil proceedings against the Crown, as defined in rule 66.1(2), a request for a default judgment must be considered by a Master or district judge, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown in accordance with section 18 of the Crown Proceedings Act 1947 and rule 6.5(8).

Section 20 Amendment to the Civil Procedure Rules 1998

In rule 12.10, for sub-paragraph (a), substitute—

(a) the claim is—

(i) a claim against a child or patient; or

(ii) a claim in tort by one spouse or civil partner against the other.

Section 21 Amendment to the Civil Procedure Rules 1998

In rule 12.11, paragraph (3), after “a claim in tort between spouses”, insert “or civil partners”.

Section 22 Amendment to the Civil Procedure Rules 1998

In rule 16.2, after paragraph (1), insert—

(1A) In civil proceedings against the Crown, as defined in rule 66.1(2), the claim form must also contain—

(a) the names of the government departments and officers of the Crown concerned; and

(b) brief details of the circumstances in which it is alleged that the liability of the Crown arose.

Section 23 Amendment to the Civil Procedure Rules 1998

In rule 19.4, after paragraph (4), insert—

(4A) The Commissioners for HM Revenue and Customs may be added as a party to proceedings only if they consent in writing.

Section 24 Amendment to the Civil Procedure Rules 1998

After rule 19.7A insert—

Postal Services Act 2000 (c. 26)

(19.7B)

(1) An application under section 92 of the Postal Services Act 2000 for permission to bring proceedings in the name of the sender or addressee of a postal packet or his personal representative is made in accordance with Part 8.

(2) A copy of the application notice must be served on the universal service provider and on the person in whose name the applicant seeks to bring the proceedings.

Section 25 Amendment to the Civil Procedure Rules 1998

After rule 21.11 insert—

Expenses incurred by a litigation friend

(21.11A)

(1) In proceedings to which rule 21.11 applies, a litigation friend who incurs expenses on behalf of a child or patient in any proceedings is entitled to recover the amount paid or payable out of any money recovered or paid into court to the extent that it—

(a) has been reasonably incurred; and

(b) is reasonable in amount.

(2) Expenses may include all or part of—

(a) an insurance premium, as defined by rule 43.2(1)(m); or

(b) interest on a loan taken out to pay an insurance premium or other recoverable disbursement.

(3) No application may be made under this rule for expenses that—

(a) are of a type that may be recoverable on an assessment of costs payable by or out of money belonging to a child or patient; but

(b) are disallowed in whole or in part on such an assessment.

(Expenses which are also “costs” as defined in rule 43.2(1)(a) are dealt with under rule 48.5(2)).

(4) In deciding whether the expense was reasonably incurred and reasonable in amount, the court must have regard to all the circumstances of the case including the factors set out in rule 44.5(3).

(5) When the court is considering the factors to be taken into account in assessing the reasonableness of expenses incurred by the litigation friend on behalf of a child or patient, it will have regard to the facts and circumstances as they reasonably appeared to the litigation friend or child’s or patient’s legal representative when the expense was incurred.

(6) Where the claim is settled or compromised, or judgment is given, on terms that an amount not exceeding £5,000 is paid to the child or patient, the total amount the litigation friend may recover under paragraph (1) of this rule shall not exceed 25% of the sum so agreed or awarded, unless the Court directs otherwise. Such total amount shall not exceed 50% of the sum so agreed or awarded.

Section 26 Amendment to the Civil Procedure Rules 1998

In rule 23.12, after “dismisses an application”, insert “(including an application for permission to appeal or for permission to apply for judicial review)”.

Section 27 Amendment to the Civil Procedure Rules 1998

In rule 24.4, after paragraph (1), insert—

(1A) In civil proceedings against the Crown, as defined in rule 66.1(2), a claimant may not apply for summary judgment until after expiry of the period for filing a defence specified in rule 15.4.

Section 28 Amendment to the Civil Procedure Rules 1998

In rule 26.4(2)—

(a) after “the court will direct that the proceedings”, insert “, either in whole or in part,”; and

(b) after “be stayed for one month”, insert “, or for such specified period as it considers appropriate.”.

Section 29 Amendment to the Civil Procedure Rules 1998

In rule 27.2—

(a) in sub-paragraph (1)(f), before “Part 18”, insert “Subject to paragraph (3),”; and

(b) after paragraph (2), insert—

(3) The court of its own initiative may order a party to provide further information if it considers it appropriate to do so.

Section 30 Amendment to the Civil Procedure Rules 1998

In rule 27.9, for paragraph (1), substitute—

(1) If a party who does not attend a final hearing—

(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;

(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and

(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,

the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.

Section 31 Amendment to the Civil Procedure Rules 1998

In rule 27.14—

(a) after paragraph (2), insert—

(2A) A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph (2)(d) but the court may take it into consideration when it is applying the unreasonableness test.

(Rule 36.2(5) allows the court to order Part 36 costs consequences in a small claim).

(b) in sub-paragraph (3)(c), after “loss of earnings”, insert “or loss of leave”; and

(c) for paragraph (5) substitute—

(5) Where—

(a) the financial value of a claim exceeds the limit for the small claims track; but

(b) the claim has been allocated to the small claims track in accordance with rule 26.7(3),

the small claims track costs provisions will apply unless the parties agree that the fast track costs provisions are to apply.

(6) Where the parties agree that the fast track costs provisions are to apply, the claim will be treated for the purposes of costs as if it were proceeding on the fast track except that trial costs will be in the discretion of the court and will not exceed the amount set out for the value of claim in rule 46.2 (amount of fast track trial costs).

Section 32 Amendment to the Civil Procedure Rules 1998

In rule 28.5—

(a) for paragraph (3) substitute—

(3) If no party files the completed pre-trial checklist by the date specified, the court will order that unless a completed pre-trial checklist is filed within 7 days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court.

(b) after paragraph (3), insert—

(4) If—

(a) a party files a completed pre-trial checklist but another party does not;

(b) a party has failed to give all the information requested by the pre-trial checklist; or

(c) the court considers that a hearing is necessary to enable it to decide what directions to give in order to complete preparation of the case for trial,

the court may give such directions as it thinks appropriate.

Section 33 Amendment to the Civil Procedure Rules 1998

In rule 29.6—

(a) for paragraph (3) substitute—

(3) If no party files the completed pre-trial checklist by the date specified, the court will order that unless a completed pre-trial checklist is filed within 7 days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court.

(b) after paragraph (3), insert—

(4) If—

(a) a party files a completed pre-trial checklist but another party does not;

(b) a party has failed to give all the information requested by the pre-trial checklist; or

(c) the court considers that a hearing is necessary to enable it to decide what directions to give in order to complete preparation of the case for trial,

the court may give such directions as it thinks appropriate.

Section 34 Amendment to the Civil Procedure Rules 1998

In rule 30.3, after sub-paragraph (2)(g), insert—

;

in the case of civil proceedings by or against the Crown, as defined in rule 66.1(2), the location of the relevant government department or officers of the Crown and, where appropriate, any relevant public interest that the matter should be tried in London.

Section 35 Amendment to the Civil Procedure Rules 1998

In rule 30.8—

(a) in sub-paragraph (1), after “Queen’s Bench Division”, insert “(other than proceedings in the Commercial or Admiralty Courts)”; and

(b) after sub-paragraph (3), insert—

(4) If any such proceedings which have been commenced in the Queen’s Bench Division or a Mercantile Court fall within the scope of rule 58.1(2), any party to those proceedings may apply for the transfer of the proceedings to the Commercial Court, in accordance with rule 58.4(2) and rule 30.5(3). If the application is refused, the proceedings must be transferred to the Chancery Division of the High Court at the Royal Courts of Justice.

Section 36 Amendment to the Civil Procedure Rules 1998

After rule 32.19 insert—

Notarial acts and instruments

(32.20) A notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved.

Section 37 Amendment to the Civil Procedure Rules 1998

In rule 40.3—

(a) in sub-paragraph (1), for “Every” substitute “Except as is provided at paragraph (4) below or by any Practice Direction, every”; and

(b) after paragraph (3), insert—

(4) Except for orders made by the court of its own initiative and unless the court otherwise orders, every judgment or order made in claims proceeding in the Queen’s Bench Division at the Royal Courts of Justice, other than in the Administrative Court, will be drawn up by the parties, and rule 40.3 is modified accordingly.

Section 38 Amendment to the Civil Procedure Rules 1998

In rule 44.13—

(a) in sub-paragraph (1)(a), at the beginning insert “subject to paragraphs (1A) and (1B),”; and

(b) after paragraph (1), insert—

(1A) Where the court makes—

(a) an order granting permission to appeal;

(b) an order granting permission to apply for judicial review; or

(c) any other order or direction sought by a party on an application without notice,and its order does not mention costs, it will be deemed to include an order for applicant’s costs in the case.

(1B) Any party affected by a deemed order for costs under paragraph (1A) may apply at any time to vary the order.

Section 39 Amendment to the Civil Procedure Rules 1998

In rule 45.20(2), after sub-paragraph (a)(iii), insert—

(iv) relates to an injury to which Section V of this Part applies; or

Section 40 Amendment to the Civil Procedure Rules 1998

After Section IV of Part 45 insert Section V as set out in Schedule 1 to these Rules.

Section 41 Amendment to the Civil Procedure Rules 1998

In rule 48.5—

(a) in sub-paragraph (2)(a), after “the court must order a detailed assessment of the costs payable by”, insert “, or out of money belonging to,”;

(b) at the end of sub-paragraph (2)(a), after “any party who is a child or patient”, omit “to his solicitor”; and

(c) in sub-paragraph (4)(b), after “payable by the child or patient”, omit “to his solicitor”.

Section 42 Amendment to the Civil Procedure Rules 1998

In rule 55.1—

(a) at the end of sub-paragraph (f), omit “and”; and

(b) after sub-paragraph (g), insert—

; and

“a suspension claim” means a claim made by a landlord for an order under section 121A of the 1985 Act.

Section 43 Amendment to the Civil Procedure Rules 1998

In rule 55.2, after paragraph (1), for the cross-reference substitute—

(Where a demotion claim or a suspension claim (or both) is made in the same claim form in which a possession claim is started, this Section of this Part applies as modified by rule 65.12. Where the claim is a demotion claim or a suspension claim only, or a suspension claim made in addition to a demotion claim, Section III of Part 65 applies).

Section 44 Amendment to the Civil Procedure Rules 1998

After rule 55.10 insert—

Electronic issue of certain possession claims

(55.10A)

(1) A practice direction may make provision for a claimant to start certain types of possession claim in certain courts by requesting the issue of a claim form electronically.

(2) The practice direction may, in particular—

(a) provide that only particular provisions apply in specific courts;

(b) specify—

(i) the type of possession claim which may be issued electronically;

(ii) the conditions that a claim must meet before it may be issued electronically;

(c) specify the court where the claim may be issued;

(d) enable the parties to make certain applications or take further steps in relation to the claim electronically;

(e) specify the requirements that must be fulfilled in relation to such applications or steps;

(f) enable the parties to correspond electronically with the court about the claim;

(g) specify the requirements that must be fulfilled in relation to electronic correspondence;

(h) provide how any fee payable on the filing of any document is to be paid where the document is filed electronically.

(3) The Practice Direction may disapply or modify these Rules as appropriate in relation to possession claims started electronically.

Section 45 Amendment to the Civil Procedure Rules 1998

After rule 60.6 insert—

Judgments and Orders

(60.7)

(1) Except for orders made by the court of its own initiative and unless the court otherwise orders, every judgment or order made in claims proceeding in the Technology and Construction Court will be drawn up by the parties, and rule 40.3 is modified accordingly.

(2) An application for a consent order must include a draft of the proposed order signed on behalf of all the parties to whom it relates.

(3) Rule 40.6 (consent judgments and orders) does not apply.

Section 46 Amendment to the Civil Procedure Rules 1998

In rule 63.1, after sub-paragraph (2)(g), insert—

(gg) “patents judge” means a person nominated under section 291(1) of the 1988 Act as the patents judge of a patents county court;

Section 47 Amendment to the Civil Procedure Rules 1998

After rule 63.4 insert—

Patents Judge

(63.4A)

(1) Subject to paragraph (2), proceedings in the patents county court shall be dealt with by the patents judge.

(2) When a matter needs to be dealt with urgently and it is not practicable or appropriate for the patents judge to deal with such matter, the matter may be dealt with by another judge with appropriate specialist experience who shall be nominated by the Vice-Chancellor.

Section 48 Amendment to the Civil Procedure Rules 1998

In Part 65—

(a) for the heading to Section III, substitute “Demotion claims, proceedings related to demoted tenancies and applications to suspend the right to buy”;

(b) in rule 65.11, paragraph (1)—

(i) at the end of sub-paragraph (a), omit “and”; and

(ii) after sub-paragraph (a), insert—

(aa) claims by a landlord for an order under section 121A of the Housing Act 1985 (“a suspension order”); and

(c) in rule 65.11, paragraph (2)—

(i) at the end of sub-paragraph (a), omit “and”; and

(ii) at the end of sub-paragraph (b), insert—

;

“suspension claim” means a claim made by a landlord for a suspension order; and

“suspension period” means the period during which the suspension order suspends the right to buy in relation to the dwelling house.

(d) in rule 65.12—

(i) in the heading, after “Demotion claims”, insert “or suspension claims”; and

(ii) after “Where a demotion order”, insert “or suspension order (or both)”;

(e) in rule 65.13—

(i) in the heading, after “Other demotion”, insert “or suspension”; and

(ii) after “Where a demotion claim”, insert “or suspension claim (or both)”;

(f) in rule 65.14—

(i) in the heading, after “Starting a demotion”, insert “or suspension”; and

(ii) in paragraph (1), for “The demotion claim”, substitute “The claim”;

(g) in rule 65.17, paragraph (3), after “Part 12 (default judgment) does not apply”, omit “in a demotion claim”;

(h) in rule 65.18—

(i) in sub-paragraph (1)(a), for “decide the demotion claim”, substitute “decide the claim”;

(ii) in paragraph (2), for “the demotion claim”, substitute “the claim” in both places where it occurs; and

(iii) in sub-paragraph (3)(a), for “the demotion claim”, substitute “the claim”; and

(i) in rule 65.19, for “a demotion claim”, substitute “the claim”.

Section 49 Amendment to the Civil Procedure Rules 1998

After Part 65 insert Part 66 (Crown Proceedings) as set out in Schedule 2 to these Rules.

Section 50 Amendment to the Civil Procedure Rules 1998

In rule 74.1—

(a) after paragraph (4), insert new paragraph (4A)—

(4A) Section V applies to—

(a) the certification of judgments and court settlements in England and Wales as European Enforcement Orders; and

(b) the enforcement in England and Wales of judgments, court settlements and authentic instruments certified as European Enforcement Orders by other Member States.

(b) in paragraph (5), after sub-paragraph (d), insert—

;

“the EEO Regulation ” means Council Regulation ( EC ) No 805/2004 creating a European Enforcement Order for uncontested claims.