APRIL 5th IS AN IMPORTANT DATE: WHAT IS MEANT BY “ISSUED” IN THE CONTEXT OF CHANGES TO QOCS?

The new rules relating to the ability to set off defendant’s costs liabilities against a claimant’s costs and damages have, I am told, led to a rush to issue proceedings and a backlog in some courts.  These rules come into force for proceedings issued “on or after” the 6th April 2023.  This has led to some discussion as to what is meant by “issued”.  The only safe assumption is that “issued” means dealt with by the court, not simply received by the court.   The position in relation to issuing online also has a degree of uncertainty.   The only sensible advice, if you are considering issuing for these

 

WHAT THE STATUTORY INSTRUMENT SAYS: WHEN IT COMES INTO FORCE

The key date is the date of issue. The Statutory Instrument states.

“(3) The amendments made by rule 24 of these Rules apply only to claims where proceedings are issued on or after 6th April 2023.”

An important point here is that proceedings issued on the 6th April 2023 are subject to the new regime.

WHAT IS MEANT BY “ISSUE”?

This could come to be an interesting argument at some point if there is a delay between lodging at court and “issue”.   The date of issue is not necessarily the date that the court receives the claim form.  It may well be that the date of “issue” is the date on which the court actions the proceedings.

THE PRACTICE DIRECTION ON “ISSUE OF PROCEEDINGS”

The difference between the date of issue and the relevant date for limitation purposes is recognised in the Practice Direction (PD7). There is a difference between the date of issue and the date of receipt.

“5.1  Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

5.2  The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

5.3  An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.

5.4  Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date”

ELECTRONIC ISSUE: PRACTICE DIRECITON 51ZB

Practice Direction 51ZB has different rules.

2.2

(1) The court must notify the claimant by e-mail when the claim is received by the court.

(2) Notification of receipt does not constitute notice that the claim form has been issued.

(3) The court must issue the claim form when payment of the appropriate fee is confirmed.

(4) The claim is brought for the purpose of the Limitation Act 1980 and any other period of limitation at the point at which the claim is issued, and not before. CPR PD 7A paragraph 5.1 does not apply.

SO… ISSUE PROMPTLY

It is not possible to determine how the courts will construe the words “issued”. There is a strong likelihood that the words “issued” in the statutory instrument will be construed strictly to mean “issued” by the court, not merely received at the court.  In these circumstances there is a need to be very prompt to ensure “issue” before the 6th April.