The future of civil procedure?
In 2020 we saw both pandemic and non-pandemic related amendments to the Civil Procedural Rules (CPR) and a general shift in how personal injury cases are managed by both the courts and solicitors. Looking ahead to 2021, what further changes might we expect to reflect this new way of working?
Litigation outside the CPR
Throughout 2020 there was a noticeable difference in the usual post-directions questionnaire court notice with Costs and Case Management Conferences (CCMC) in multi-track matters no longer guaranteed as the automatic next step. Instead, parties were strongly encouraged to agree directions and only seek a CCMC as a last resort.
Whilst not every case has directions capable of agreement, there have been benefits to not assuming a CCMC is required in every case. Parties are under greater pressure to concede weaker points they might otherwise have run to a CCMC, it encourages greater co-operation between parties and ultimately saves on costs and counsel’s fees if directions can be agreed. Parties are also able to progress with the undisputed directions much earlier than if they had to wait for a CCMC to provide full directions, helping to achieve speedier outcomes.
We therefore hope that this decrease in reliance on the court for non-contentious issues continues to be encouraged in 2021.
Default judgments – increase or decrease?
Missed deadlines for acknowledgments of service cause worry for defendants. Lockdown and the struggling postal system have amplified this concern, particularly for insurers who can be left unaware if service has been effected on their insured who may not presently have access to the service address. We are seeing more and more applications for default judgements when this procedural deadline is missed and this trend is likely to continue into 2021 as lockdown continues.
Due to last year’s update to CPR 12.3 however, an application for default judgment will only be successful if the defendant is in default at the date judgment is entered. Therefore, if the defendant files a defence after the claimant’s application for default judgment but before the court has entered judgment, the court cannot subsequently order default judgment given the presence of the defence. Equally, if default judgement has been entered, this can be set aside by consent or an application to the court using CPR 13.3.
Once the pandemic is over, last year’s update to the CPR makes applying for default judgement less appealing to claimants. We may therefore see a decline in these types of applications towards the end of 2021.
The rise in the number of solicitors working remotely saw an increase in willingness and agreement to accept service via email in 2020. Currently the CPR states that service can only be effected by email with the recipients consent. As recent as 2018, the Supreme Court expressed concern over the potential problems with email service including the risk of these emails getting lost amongst other messages, such as in the case of Barton v Wright Hassall LLP . Now that firms have had to develop systems to deal with this issue efficiently, and given agile working seems likely to become the norm, might now be the time to review the position with email service and bring the CPR’s position in line with a more modern approach?
We are also likely to see more judicial decisions on service-related issues throughout 2021. Anticipated areas of contention are likely to include service via email, missed service due to business closure, and missed deadlines for service caused by a depleted workforce.
We have noticed a trend of more contested applications being determined on paper, despite the parties’ indication that a hearing is required. Whilst in theory this could be a cost effective way to determine an application, in reality, the losing party is rarely content to let such an order stand, given they have not had the opportunity to put across their position. This then leads to further costs and delays whilst a subsequent application is made.
If the courts are moving to more paper-based decisions, it seems prudent to ensure that a response to a contested application is filed with the court as soon as possible. Waiting to outline objections in a skeleton argument in anticipation of a hearing now seems risky if more judges are opting to decide applications on paper. Filing objections might assist a judge when considering an application to either list the matter for a hearing in order to hear from both parties, or even to reject an application on paper.
The pandemic and its consequences have clearly shaped how cases are being advanced. The above represents some areas where we might see more formal procedural changes to reflect this new way of working. It is hoped that these modernisations continue to be supported by solicitors as well.