The Civil Procedure (Amendment) Rules 2013

Citation, commencement and interpretation

1.  These Rules may be cited as the Civil Procedure (Amendment) Rules 2013.

2.  These Rules shall come into force on 1st April 2013.

3.  In these Rules—

(a) a reference to a Part or rule by number alone means the Part or rule so numbered in the Civil Procedure Rules 1998(1);

(b) a reference to an Order by number and prefixed by “RSC” means the RSC Order so numbered in Schedule 1 to those Rules; and

(c) a reference to an Order by number and prefixed by “CCR” means the CCR Order so numbered in Schedule 2 to those Rules.

Amendments to the Civil Procedure Rules 1998

4.  In rule 1.1—

(a) In paragraph (1), after “justly” insert “and at proportionate cost”; and

(b) In paragraph (2)—

(i) after “justly” insert “and at proportionate cost”;

(ii) at the end of sub-paragraph (d), omit “and”;

(iii) at the end of sub-paragraph (e), for “.” substitute “; and”; and

(iv) after sub-paragraph (e) insert the following sub-paragraph—

“(f) enforcing compliance with rules, practice directions and orders.”.

5.  In Part 3—

(a) in the heading to the Part, after “CASE” insert “AND COSTS”;

(b) in the Table of Contents of the Part—

(i) before the entry for rule 3.1, insert the Section heading—

“SECTION I – CASE MANAGEMENT”

(ii) after the entry for rule 3.10, insert the following entry—

“Power of the court to make civil restraint orders

Rule 3.11”

; and

(iii) after the entry for rule 3.11, insert the following Section headings and rules—

“SECTION II – COSTS MANAGEMENT
Application of this Section and the purpose of costs management	Rule 3.12
Filing and exchanging budgets	Rule 3.13
Failure to file a budget	Rule 3.14
Costs management orders	Rule 3.15
Costs management conferences	Rule 3.16
Court to have regard to budgets and to take account of costs	Rule 3.17
Assessing costs on the standard basis where a costs management order has been made	Rule 3.18
SECTION III – COSTS CAPPING
Costs capping orders - General	Rule 3.19
Application for a costs capping order	Rule 3.20
Application to vary a costs capping order	Rule 3.21”

(c) before the heading for rule 3.1, insert the Section heading—

“SECTION I

Case Management” ;

(d) after rule 3.1(7), insert—

“(8) The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court.”;

(e) in—

(i) rule 3.7(1) and the words in the first set of parentheses that follow it; and

(ii) rule 3.7A(1)(b),

for “an allocation”, in each place that those words occur, substitute “a directions”;

(f) in rule 3.8, in the parentheses that follow paragraph (1), for “may” substitute “will”;

(g) for rule 3.9(1), substitute—

“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.”; and

(h) after rule 3.11, insert—

“SECTION II Costs Management

Application of this Section and the purpose of costs management

3.12.— (1) This Section and Practice Direction 3E apply to all multi-track cases commenced on or after 1^st April 2013 in—

(a) a county court; or

(b) the Chancery Division or Queen’s Bench Division of the High Court (except the Admiralty and Commercial Courts),

unless the proceedings are the subject of fixed costs or scale costs or the court otherwise orders. This Section and Practice Direction 3E shall apply to any other proceedings (including applications) where the court so orders.

(2) The purpose of costs management is that the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings so as to further the overriding objective.

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.

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.

Costs management orders

3.15.— (1) In addition to exercising its other powers, the court may manage the costs to be incurred by any party in any proceedings.

(2) The court may at any time make a “costs management order”. By such order the court will—

(a) record the extent to which the budgets are agreed between the parties;

(b) in respect of budgets or parts of budgets which are not agreed, record the court’s approval after making appropriate revisions.

(3) If a costs management order has been made, the court will thereafter control the parties’ budgets in respect of recoverable costs.

Costs management conferences

3.16.— (1) Any hearing which is convened solely for the purpose of costs management (for example, to approve a revised budget) is referred to as a “costs management conference”.

(2) Where practicable, costs management conferences should be conducted by telephone or in writing.

Court to have regard to budgets and to take account of costs

3.17.— (1) When making any case management decision, the court will have regard to any available budgets of the parties and will take into account the costs involved in each procedural step.

(2) Paragraph (1) applies whether or not the court has made a costs management order.

Assessing costs on the standard basis where a costs management order has been made

3.18.   In any case where a costs management order has been made, when assessing costs on the standard basis, the court will—

(a) have regard to the receiving party’s last approved or agreed budget for each phase of the proceedings; and

(b) not depart from such approved or agreed budget unless satisfied that there is good reason to do so.

(Attention is drawn to rule 44.3(2)(a) and rule 44.3(5), which concern proportionality of costs.)

SECTION III Costs Capping

Costs capping orders – General

3.19.— (1) A costs capping order is an order limiting the amount of future costs (including disbursements) which a party may recover pursuant to an order for costs subsequently made.

(2) In this rule, “future costs” means costs incurred in respect of work done after the date of the costs capping order but excluding the amount of any additional liability.

(3) This rule does not apply to protective costs orders.

(4) A costs capping order may be in respect of –

(a) the whole litigation; or

(b) any issues which are ordered to be tried separately.

(5) The court may at any stage of proceedings make a costs capping order against all or any of the parties, if—

(a) it is in the interests of justice to do so;

(b) there is a substantial risk that without such an order costs will be disproportionately incurred; and

(c) it is not satisfied that the risk in subparagraph (b) can be adequately controlled by–

(i) case management directions or orders made under this Part; and

(ii) detailed assessment of costs.

(6) In considering whether to exercise its discretion under this rule, the court will consider all the circumstances of the case, including—

(a) whether there is a substantial imbalance between the financial position of the parties;

(b) whether the costs of determining the amount of the cap are likely to be proportionate to the overall costs of the litigation;

(c) the stage which the proceedings have reached; and

(d) the costs which have been incurred to date and the future costs.

(7) A costs capping order, once made, will limit the costs recoverable by the party subject to the order unless a party successfully applies to vary the order. No such variation will be made unless—

(a) there has been a material and substantial change of circumstances since the date when the order was made; or

(b) there is some other compelling reason why a variation should be made.

Application for a costs capping order

3.20.— (1) An application for a costs capping order must be made on notice in accordance with Part 23.

(2) The application notice must –

(a) set out –

(i) whether the costs capping order is in respect of the whole of the litigation or a particular issue which is ordered to be tried separately; and

(ii) why a costs capping order should be made; and

(b) be accompanied by a budget setting out –

(i) the costs (and disbursements) incurred by the applicant to date; and

(ii) the costs (and disbursements) which the applicant is likely to incur in the future conduct of the proceedings.

(3) The court may give directions for the determination of the application and such directions may –

(a) direct any party to the proceedings –

(i) to file a schedule of costs in the form set out in paragraph 3 of Practice Direction 3F – Costs capping;

(ii) to file written submissions on all or any part of the issues arising;

(b) fix the date and time estimate of the hearing of the application;

(c) indicate whether the judge hearing the application will sit with an assessor at the hearing of the application; and

(d) include any further directions as the court sees fit.

Application to vary a costs capping order

3.21.   An application to vary a costs capping order must be made by application notice pursuant to Part 23.”.

6.  In rule 16.3, in paragraph (2)(b)(i) and (ii), for “£5,000” substitute “£10,000”.

7.  In Part 21—

(a) in rule 21.10—

(i) in paragraph (3), for “Section VI” substitute “Section III”; and

(ii) in the parentheses after paragraph (3), for “48.5” substitute “46.4”;

(b) in rule 21.12—

(i) in paragraph (2)—

(aa) in sub-paragraph (a), for “an insurance policy, as defined by rule 43.2(1)(m)”, substitute “a premium in respect of a costs insurance policy (as defined by section 58C(5) of the Courts and Legal Services Act 1990)” ; and

(bb) in sub-paragraph (b), for “an insurance premium” substitute “a premium in respect of a costs insurance policy”; and

(ii) in the parentheses after paragraph (3)—

(aa) for “43.2(1)(a)” substitute “44.1(1)(a)”; and

(bb) for “48.5(2)” substitute “46.4(2)”; and

(iii) in paragraph (4), for “44.5(3)” substitute “44.4(3)”.

8.  In Part 26—

(a) in the Table of Contents of the Part, in the entry for “Allocation questionnaire”, for “Allocation” substitute “Directions”;

(b) in rule 26.2A—

(i) in paragraph (2)—

(aa) omit “before the service of a notice by the court under rule 26.3(1A)”; and

(bb) after “the preferred court” insert “or the defendant’s home court as appropriate”;

(ii) in paragraph (5), for “allocation” substitute “directions”; and

(iii) for paragraph (6) substitute—

“(6) The relevant time for the purposes of this rule is when—

(a) all parties have filed their directions questionnaires;

(b) any stay ordered by the court or period to attempt settlement through mediation has expired; or

(c) if the claim falls within Practice Direction 7D—

(i) the defence is filed; or

(ii) enforcement of a default judgment other than by a warrant of execution is requested,

whichever occurs first.”;

(c) in rule 26.3—

(i) in the heading, for “Allocation”, substitute “Directions”;

(ii) for paragraph (1) substitute—

“(1) If a defendant files a defence—

(a) a court officer will—

(i) provisionally decide the track which appears to be most suitable for the claim; and

(ii) serve on each party a notice of proposed allocation; and

(b) the notice of proposed allocation will—

(i) specify any matter to be complied with by the date specified in the notice;

(ii) require the parties to file a completed directions questionnaire and serve copies on all other parties;

(iii) state the address of the court or the court office to which the directions questionnaire must be returned;

(iv) inform the parties how to obtain the directions questionnaire; and

(v) if a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposed directions by the date specified in the notice.”;

(iii) omit paragraph (1A);

(iv) in paragraph (1B), for “allocation” substitute “directions”;

(v) in paragraph (2), for “(1A)” substitute “(1)”;

(vi) for paragraph (3), substitute—

“(3) If proceedings are automatically transferred under rule 26.2 or rule 26.2A the court in which the proceedings have been commenced—

(a) will serve the notice of proposed allocation before the proceedings are transferred; and

(b) will not transfer the proceedings until all parties have complied with the notice or the time for doing so has expired.”;

(vii) for paragraph (4), substitute—

“(4) If rule 15.10 or rule 14.5 applies, the court will not serve a notice under rule 26.3(1) until the claimant has filed a notice requiring the proceedings to continue.”;

(viii) omit paragraph (5);

(ix) for paragraph (6), substitute—

“(6) If a notice is served under rule 26.3(1)—

(a) each party must file at court, and serve on all other parties, the documents required by the notice by no later than the date specified in it; and

(b) the date specified will be—

(i) if the notice relates to the small claims track, at least 14 days; or

(ii) if the notice relates to the fast track or multi-track, at least 28 days,

after the date when it is deemed to be served on the party in question.”;

(x) for paragraph (6A), substitute—

“(6A) The date for complying with a notice served under rule 26.3(1) may not be varied by agreement between the parties.”;

(xi) in paragraph (7), for “an allocation” substitute “a directions”;

(xii) after paragraph (7), insert—

“(7A) If a claim is a designated money claim and a party does not comply with the notice served under rule 26.3(1) by the date specified—

(a) the court will serve a further notice on that party, requiring them to comply within 7 days; and

(b) if that party fails to comply with the notice served under subparagraph (a), the party’s statement of case will be struck out without further order of the court.”;

(xiii) in paragraph (8), for “Where a party does not file an allocation questionnaire by the date specified” substitute “If a claim is not a designated money claim and a party does not comply with the notice served under rule 26.3(1) by the date specified”;

(xiv) omit paragraph (9); and

(xv) in paragraph (10)—

(aa) for “26.3(8)” substitute “26.3(7A)(b) or 26.3(8)”; and

(bb) for “any party who was not in default” substitute “any other party”;

(d) in rule 26.4—

(i) in paragraph (1), for “allocation” substitute “directions”; and

(ii) for paragraph (2) substitute—

“(2) If all parties request a stay the proceedings will be stayed for one month and the court will notify the parties accordingly.

(2A) If the court otherwise considers that such a stay would be appropriate, the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it considers appropriate.”;

(e) in rule 26.5—

(i) for paragraph (1), substitute—

“(1) The court will allocate the claim to a track—

(a) when all parties have filed their directions questionnaires; or

(b) when giving directions pursuant to rule 26.3(8),

unless it has stayed the proceedings under rule 26.4.”; and

(ii) omit paragraph (5);

(f) in rule 26.6, in—

(i) paragraph (1)(a)(i); and

(ii) paragraph (3),

for “£5,000” substitute “£10,000”;

(g) omit rule 26.7(3); and

(h) in rule 26.9—

(i) omit paragraph (2); and

(ii) at the end of the rule, in the words in parentheses, for “his” substitute “their”.

9.  In Part 27—

(a) in rule 27.1, after paragraph (2), in the words in parentheses, for “£5,000” in each place it occurs, substitute “£10,000”;

(b) in rule 27.5, for “27.14(3)(d)”, substitute “27.14(2)(f)”; and

(c) in rule 27.14—

(i) in paragraph (1) omit “unless paragraph (5 ) applies”; and

(ii) omit paragraphs (5) and (6).

10.  In Part 29—

(a) after the parentheses that follow rule 29.1, insert—

“(2) When drafting case management directions both the parties and the court should take as their starting point any relevant model directions and standard directions which can be found online at www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to the circumstances of the particular case.”;

(b) at the end of rule 29.2(1)(a), after “or” insert “may”;

(c) for rule 29.4 substitute—

“29.4.   The parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least seven days before any case management conference. Where the court approves agreed directions, or issues its own directions, the parties will be so notified by the court and the case management conference will be vacated.”; and

(d) for rule 29.8(c)(ii), substitute—

“(ii) confirm the date for trial or the week within which the trial is to begin; and”.

11.  For rule 31.5, substitute—

“31.5.— (1) In all claims to which rule 31.5(2) does not apply—

(a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise;

(b) the court may dispense with or limit standard disclosure; and

(c) the parties may agree in writing to dispense with or to limit standard disclosure.

(2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multi-track claims, other than those which include a claim for personal injuries.

(3) Not less than 14 days before the first case management conference each party must file and serve a report verified by a statement of truth, which—

(a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;

(b) describes where and with whom those documents are or may be located;

(c) in the case of electronic documents, describes how those documents are stored;

(d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and

(e) states which of the directions under paragraphs (7) or (8) are to be sought.

(4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report required by paragraph (3).

(5) Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

(6) If—

(a) the parties agree proposals for the scope of disclosure; and

(b) the court considers that the proposals are appropriate in all the circumstances,

the court may approve them without a hearing and give directions in the terms proposed.

(7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure—

(a) an order dispensing with disclosure;

(b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;

(c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;

(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;

(e) an order that a party give standard disclosure;

(f) any other order in relation to disclosure that the court considers appropriate.

(8) The court may at any point give directions as to how disclosure is to be given, and in particular—

(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;

(b) whether lists of documents are required;

(c) how and when the disclosure statement is to be given;

(d) in what format documents are to be disclosed (and whether any identification is required);

(e) what is required in relation to documents that once existed but no longer exist; and

(f) whether disclosure shall take place in stages.

(9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8).”

12.  After rule 32.2(2), insert—

“(3) The court may give directions—

(a) identifying or limiting the issues to which factual evidence may be directed;

(b) identifying the witnesses who may be called or whose evidence may be read; or

(c) limiting the length or format of witness statements.”.

13.  In Part 35, in rule 35.4—

(a) in paragraph (2), after “must” insert “provide an estimate of the costs of the proposed expert evidence and”;

(b) in paragraph (2)(a), after “required” insert “and the issues which the expert evidence will address”; and

(c) at the end of paragraph (3), after “paragraph (2).” insert “The order granting permission may specify the issues which the expert evidence should address.”.

14.  In Part 36, in rule 36.14(3)—

(a) in subparagraph (b)—

(i) omit “his”; and

(ii) at the end, omit “and”;

(b) in subparagraph (c), for the full stop substitute “; and”; and

(c) after subparagraph (c), insert—

“(d) an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is—

(i) where the claim is or includes a money claim, the sum awarded to the claimant by the court; or

(ii) where the claim is only a non-monetary claim, the sum awarded to the claimant by the court in respect of costs—

Amount awarded by the court	Prescribed percentage
up to £500,000	10% of the amount awarded;
above £500,000 up to £1,000,000	10% of the first £500,000 and 5% of any amount above that figure”

15.  Part 43 is revoked.

16.  For Parts 44 to 48, substitute Parts 44 to 48 as set out in the Schedule to these Rules.

17.  In Part 52—

(a) in the contents of the Part, after the entry for rule 52.9, insert—

“Orders to limit the recoverable costs of an appeal

Rule 52.9A”

; and

(b) after rule 52.9, insert—

“Orders to limit the recoverable costs of an appeal

52.9A.— (1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.

(2) In making such an order the court will have regard to—

(a) the means of both parties;

(b) all the circumstances of the case; and

(c) the need to facilitate access to justice.

(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).

(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.”.

18.  In rule 54.6(1)—

(a) at the end of subparagraph (b), omit “and”;

(b) in subparagraph (c), for the full stop substitute “; and”; and

(c) after subparagraph (c) insert—

“(d) where appropriate, the grounds on which it is contended that the claim is an Aarhus Convention claim.

(Rules 45.41 to 45.44 make provision about costs in Aarhus Convention claims.)”.

19.  In Part 63, in rule 63.27(1)(b), for “£5,000” substitute “£10,000”.

20.  In CCR Order 27, omit rule 7A(3).

21.  In the Glossary—

(a) after the entry for “Base rate”, insert—

“Budget

An estimate of the reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings.”

; and

(b) after the entry for “Exemplary damages”, insert—

“Damages-based agreement

A damages-based agreement is an agreement which complies with the provisions of the Damages-Based Agreements Regulations 2013.”

Transitional provisions

22.—(1) The following amendments do not apply where a defence is received before 1 April 2013—

(a) the amendments made by rules 5(e), 8(a) to (e) and (h) of these Rules; and

(b) the amendments made by paragraphs 3 and 9(a) to (j) and (m) and (n) of the 60^th Update - Practice Direction amendments, that amends the Practice Directions supplementing the Civil Procedure Rules.

(2) The amendments made by rule 5(f) and (g) of these Rules do not apply to applications made before 1 April 2013 for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order.

(3) The following amendments do not apply to claims issued before 1 April 2013—

(a) the amendments made by rules 6, 8(f) and (g), 9(a) and 19 of these Rules; and

(b) the amendments made by paragraphs 9(k) and (l)(i) and 10(c) of the 60^th Update - Practice Direction amendments that amends the Practice Directions supplementing the Civil Procedure Rules.

(4) The amendment made by rule 10(c) of these Rules does not apply where any case management conference takes place or is due to take place before 9 April 2013.

(5) The amendment made by rule 11 of these Rules does not apply where the first case management conference takes place or is due to take place before 16 April 2013.

(6) The amendments made by rule 13 of these Rules do not apply in relation to an application for permission made before 1 April 2013.

(7) The amendments made by rule 14 of these Rules do not apply in relation to a claimant’s Part 36 offer which was made before 1 April 2013.

(8) The amendments made by rule 18 and the provision made by rules 45.41 to 45.44 in the Schedule (costs limits in Aarhus Convention claims) do not apply in relation to a claim commenced before 1 April 2013.

(9) The provision made by rule 47.14(7) in the Schedule (when time for appealing against assessment starts to run) of these Rules does not apply where the final hearing was concluded before 1 April 2013.

(10) The provision made by rule 47.20(1) to (5) and (7) in the Schedule (liability for costs of detailed assessment proceedings) does not apply to detailed assessments commenced before 1 April 2013 and in relation to such detailed assessments, rules 47.18 and 47.19 as they were in force immediately before 1 April 2013 apply instead.

(11) The amendment made by rule 47.20(6) in the Schedule to these Rules (interest on the costs of detailed assessment proceedings) does not apply where the date of the default, interim or final costs certificate (as the case may be) is before 1 April 2013.

(12) Any defamation proceedings commenced before 1 April 2013 within the scope of the Defamation Proceedings Costs Management Scheme provided for by Practice Direction 51D supporting Part 51 will proceed and be completed in accordance with that scheme.

(13) Any detailed assessment commenced before 1 April 2013 under the County Court Provisional Assessment Pilot Scheme provided for by Practice Direction 51E supporting Part 51 will proceed and be completed in accordance with that scheme.

(14) Any proceedings in the Mercantile Courts and the Construction Courts commenced before 1 April 2013 that are within the scope of the Costs Management in Mercantile Courts and Construction Courts Pilot Scheme provided for by Practice Direction 51G supporting Part 51 will proceed and be completed in accordance with that scheme.

The Right Honourable Lord Dyson, MR

Stephen Richards, LJ

Peter Coulson, J

Philip Sales, J

Master Barbara Fontaine

HHJ Stephen Stewart QC

District Judge Suzanne Burn

District Judge Christopher Lethem

Nicholas Bacon QC

William Featherby QC

Professor David Grant

Edward Pepperall

Katy Peters

Qasim Nawaz

Amanda Stevens

I allow these Rules

Signed by authority of the Lord Chancellor

Helen Grant

Parliamentary Under Secretary of State

Ministry of Justice

31st January 2013