DO YOU HAVE TO FILE FORM H IN PART 8 PROCEEDINGS? SOMETHING YOU SHOULD BE SURE ABOUT
All litigators know (or should know) the central importance of Form H in civil procedure. If you don’t file the form in time then you don’t get paid. A colleague today asked me whether it was necessary to file a Form H in Part 8 proceedings. The answer may surprise many.
THE REQUIREMENT TO FILE FORM H
First look at the new 3.12.
“II COSTS MANAGEMENT
Application of this Section and the purpose of costs management
(1) This Section and Practice Direction 3E apply to all multi-track cases commenced on or after 1st April 2013, except –
(a) cases in the Admiralty and Commercial Courts;
(b) such cases in the Chancery Division as the Chancellor of the High Court may direct; and
(c) such cases in the Technology and Construction Court and the Mercantile Court as the President of the Queen’s Bench Division may direct,
unless the proceedings are the subject of fixed costs or scale costs or the court otherwise orders. This Section and Practice Direction 3E will apply to any other proceedings (including applications) where the court so orders.”
PART 3.12 APPLIES TO ALL MULTI TRACK CASES
There are certain exceptions. However the general rule is that it applies to all multi-track cases.
The duty in 3.13
The parties are under a duty to exchange budgets in Form H (or Precedent H as the Practice Direction names it).
“Filing and exchanging budgets
3.13 Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets as required by the rules or as the court otherwise directs. Each party must do so by the date specified in the notice served under rule 26.3(1) or, if no such date is specified, seven days before the first case management conference.”
The consequences in part 3.14
The consequences are clear.
“Failure to file a budget
3.14 Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.”
SO HOW CAN THIS APPLY TO PART 8 PROCEEDINGS?
The answer lies in CPR 8. 9 (c)
“Modifications to general rules
8.9 Where the Part 8 procedure is followed –…
(c) the claim shall be treated as allocated to the multi-track and therefore Part 26 does not apply”
SO A PART 8 CLAIM IS AUTOMATICALLY A MULTI TRACK CLAIM
Consequently the parties’ duties are set out in 3.13. They have to file and exchange budgets seven days before the first case management conference.
This is made absolutely clear in the notes to the October 2013 supplement of the white book at 3.13:
“The provision for parties to file and exchange budgets seven days before the CMC where there is no notice served under r.26.3(1), and so no trigger for Precedent H, deals with those Part 8 claims that are automatically allocated to the multi track.”
THE DUTY TO FILE FORM H ARISES EVEN THOUGH THE PARTIES HAVE NOT HAD NOTIFICATION OF IT
This is the real sting in the tail. If a Part 8 action is listed for a CMC then the parties are under a duty to file Form H.
In some Part 8 cases there will be no CMC (for instance if the court lists the matter for an approval hearing). However in those cases where a CMC is listed there is a potential for CPR 3.14 without the parties, and the court, appreciating it.
A link to new Form H and guidance can be found here http://civillitigationbrief.wordpress.com/2013/08/20/new-form-h-from-1st-october-2013/
A discussion of the consequences of failing to file Form H can be found at http://civillitigationbrief.wordpress.com/2013/08/11/litigatorswant-to-work-for-nothing-then-dont-file-your-costs-budget-on-time/
(The decision in Mitchell has been appealed and we are awaiting the Court of Appeal judgment).