GOOD MORNING FOLKS: REMEMBER (TO ADD TO ALL YOUR OTHER TROUBLES) THE RULES CHANGE TODAY…

To add to all the practical difficulties facing litigators the 113th update to Practice Direction Amendments comes into force today. Here are some of the key points.

THE AMENDMENT TO THE STATEMENT OF TRUTH

This the major change that will affect all litigators. The amendment makes changes to the wording of the statement of truth at Practice Direction 22.

1) In paragraph 2.1, in the wording of the statement of truth, at the end insert “I
understand that proceedings for contempt of court may be brought against
anyone who makes, or causes to be made, a false statement in a document
verified by a statement of truth without an honest belief in its truth.”.
2) In paragraph 2.2—
a) after “as follows” insert “(and provided in the language of the witness
statement)”; and
b) in the wording of the statement of truth, at the end insert “I understand that
proceedings for contempt of court may be brought against anyone who
makes, or causes to be made, a false statement in a document verified by a
statement of truth without an honest belief in its truth.”.

PUTTING THIS ALL TOGETHER

As ever this makes more sense if I add the new rules to the existing rules.

Form of the statement of truth

2.1  The form of the statement of truth verifying a statement of case, a response, an application notice or a notice of objections should be as follows:

‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true.understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”.

2.2  The form of the statement of truth verifying a witness statement should be as follows:

‘I believe that the facts stated in this witness statement are true I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”.

OTHER AMENDMENTS

There are two new requirements in relation to the statement of truth added to PD 22.2

“2.4 The statement of truth must be in the witness’s own language.
2.5 A statement of truth must be dated with the date on which it was signed.”

PLEADING MITIGATION OF LOSS

THE CHANGE

The change is to Practice Direction 16.

“In paragraph 8.2(8), for “mitigation of loss or damage” substitute “a claim for
mitigation expenditure”

This only makes sense if you consider the existing rule which puts the burden on a claimant to plead “(8) any facts relating to mitigation of loss or damage.   The burden of proof in proving a failure to mitigate loss lies on the defendant.  The situation with mitigation expenditure may be slightly different.  A claimant may have to plead matters relating to money spent in mitigation of loss.

PLEADING IN CAR HIRE CLAIMS

There are new obligations imposed on a claimant in car hire claims.

PRACTICE DIRECTION 16 – STATEMENTS OF CASE

1) After paragraph 6.2 insert—
3
“Hire of replacement motor vehicle following a road traffic accident
6.3 Where the claim includes the cost of hire of a replacement motor vehicle
following a road traffic accident, the claimant must state in the particulars of
claim—
(1) the need for the replacement vehicle at the relevant time;
(2) the period of hire claimed (providing the start and end of the period);
(3) the rate of hire claimed;
(4) the reasonableness of the period and rate of hire; and
(5) impecuniosity (if the claim relates to credit hire).
6.4 In paragraph 6.3—
(1) “relevant time” means at the start of the hire and throughout the period of hire;
(2) the obligation to state the matters there set out includes an obligation to state
relevant facts.”.
2) In paragraph 8.2(8), for “mitigation of loss or damage” substitute “a claim for
mitigation expenditure”.

NOTE THE NEED TO PLEAD “A CLAIM FOR MITIGATION EXPENDITURE”

I have written elsewhere about how the old rule on pleading mitigation of loss did not make sense.   However the new rule does.  It reflects the observations made in a Note to a judgment by the Court of Appeal in Zurich Insurance Plc -v- Umerji [2014]  EWCA Civ 357

“Para. 8.2 (8) of the Practice Direction reads rather oddly in the light of the well-established principle that the burden of proof on the issue of mitigation is on the defendant (see McGregor on Damages, 18th ed., para. 7-019); and we were told by both counsel that in this field it is not generally observed. I can see that it is hard on a claimant to expect him to anticipate and rebut points made about avoidable loss: it seems obviously preferable that he should plead his primary loss, wait and see what criticisms are made, and then if necessary plead to those criticisms by way of Reply. But the position is different in the case of a claim for expenditure reasonably incurred in mitigation of the primary loss. In such a case the claimant should plead his case as to reasonableness, including any assertion of impecuniosity”