CIVIL PROCEDURE AND THE SECRET STATE: HOW FAR CAN IT GO?
Yesterday I wrote of problems when the court was refusing to issue proceedings alleging (wrongly) that they were statute barred. It is becoming frightening that important issues of law are being made (or purportedly made) by administrators. This led to a response in the comment section which is equally frightening. It requires wider publicity.
THE COURT REFUSING TO ISSUE PART 8 PROCEEDINGS
Robert Pettit wrote
“We have recently started to get letters from the court refusing to issue Part 8 proceedings for court approval of infant settlements. The courts have said that the CPR has not changed but they have received an internal letter (which no one is allowed to see), which directly them to refuse Part 8 proceedings in such circumstances and request that a Part 7 claim is made and the fee for such proceedings is in line with the quantum of the settlement.”
LET US EXAMINE THIS IN DETAIL
I cannot, surely, be alone in finding this preposterous.
1. There has been no change in the CPR.
2. There is an internal letter which no one is allowed to see which directs the court to refuse Part 8 proceedings.
SECRET LAW
So we have a position where:
1. Administrators are purporting to refuse to issue proceedings on the basis they are statute barred.
2. A letter exists, which no one is allowed to see, which purports to restrict the use of Part 8 proceedings.
This, on any view, is quite ominous.
PRACTICAL CONSEQUENCES
I am told that this sometimes leads to problems where Part 8 proceedings (nor those seeking approval obviously) are issued towards the end of the limitation period but returned by the Court. So the practical advice is that if you are issuing Part 8 proceedings issue well before the end of the limitation period.
WHO CURTAILED THE USE OF PART 8?
It would be useful to know:
- Who has decided that Part 8 proceedings can be curtailed in this way?
- The legal basis for such a decision.
- Why no one is allowed to see the letter which gives out instructions to court staff.
- When procedure in the civil courts started to become governed by secret administrative dictat.
- Who is making such decisions.
By way of update (before I cause the spread of mis-information), the court has now confirmed that Part 8 is the procedural route. This accords with CPR 21.10.
The court has, however, been informed by the Civil Business Improvement Centre (their words – presumably the Civil Business Centre) that the Part 8 fee no longer applies to this Part 8 route – because that makes sense! – and that instead the appropriate fee is the scaled issue fee.
I have made a written request to the county court in question for a copy of the relevant letter/memo from the Civil Business Centre and will apply to the Civil Business Centre direct if I hit a brick wall.
Just to be clear, my issue is with notional administrative decisions that contradict the CPR and the fees SI which result in the sort of situation where you either delay your client’s claim and incur costs persuading the court service that they are wrong or you have your arm twisted and accept the higher fee.
I don’t want to distract from the much more important issue of court staff deciding limitation issues to the detriment of claimants.
In relation to infant cases the issue of limitation is rarely going to come into things because of the fact that they have until they’re 21 to bring a claim (for PI anyway) and these claims do not need approval once the client hits 18. Obviously, the point still stands for those that lack capacity for other reasons.
I will drop a comment when I hear back from the court.
And I do two months on:
—–Original Message—–
From: X On Behalf Of MOJ Fees Policy
Sent: 30 April 2014 11:26
To: ‘Rob Pettitt’
Subject: RE: CLARIFICATION ON FEES
Dear Mr Pettitt,
Thank you for your email. We apologise for the delay in responding to your query below.
I can confirm that a Part 8 claim for approval does not attract fees for issuing a claim to recover monies (pursuant of paragraph 1.1 of schedule 1 of the Civil Proceedings Order 2008) but the fee applicable for an alternative remedy is (pursuant to Paragraph 1.5 of Schedule 1 to the Civil Proceedings Fees Order 2008).
There has been some inconsistencies in the courts around fees being charged in money claim fee and fee applicable for an alternative remedy (pursuant to paragraph 1.5 of Schedule 1 to the Civil Proceedings Fees Order 2008).
We are currently working to rectify this problem, once this is done customers would be notified.
Please do not hesitate to contact me if you need any further information.
Kind Regards
X
Law and Access to Justice Group
4th Floor , Post Point 4.38 (Blue Core)
102 Petty France, London
SW1H 9AJ