The Civil Procedure (Amendment No. 2) Rules 2023

Citation, commencement and interpretation

1.—(1) These Rules may be cited as the Civil Procedure (Amendment No. 2) Rules 2023 and come into force on 1st October 2023, subject to rule 2.

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

Transitional provisions

2.—(1) Subject to paragraphs (2) and (3), in so far as any amendment made by these Rules applies to—

(a) allocation;

(b) assignment to a complexity band;

(c) directions in the fast track or the intermediate track; or

(d) costs,

those amendments only apply to a claim where proceedings are issued on or after 1st October 2023.

(2) The amendments referred to in paragraph (1) only apply—

(a) to a claim which includes a claim for personal injuries, other than a disease claim, where the cause of action accrues on or after 1st October 2023; or

(b) to a claim for personal injuries, which includes a disease claim, in respect of which no letter of claim has been sent before 1st October 2023.

(3) This rule does not apply to the amendments made by rule 9(3)(b)(i) or rule 16(1) and (6) of these Rules, nor to Section II of Part 45 in Schedule 3 to these Rules.

Amendments to the Civil Procedure Rules 1998

3.  The Civil Procedure Rules 1998 are amended in accordance with rules 4 to 21 of these Rules.

Amendment of Part 2

4.  In rule 2.11, in the words in parentheses, for “28.4 (variation of case management timetable – fast track)” substitute “28.3 (variation of case management timetable – fast track and intermediate track)”.

Amendment of Part 3

5.—(1) In rule 3.1A(3), after “multi-track” insert “, intermediate track”.

(2) In rule 3.7A1(1)(d), after “multi-track” insert “, intermediate track”.

Amendment of Part 16

6.—(1) In rule 16.2, after paragraph (1) insert—

“(1A1) In a claim to which Part 45 does not apply, no amount shall be entered on the claim form for the charges of the claimant’s legal representative, but the words ‘to be assessed’ shall be inserted.”.

(2) In rule 16.3—

(a) in paragraph (2)(b), after paragraph (iii) insert—

“(iv) more than £25,000 but not more than £100,000; or”;

(b) in paragraph (3A)(b), for “26.5A, 26.6A or 26.6B” substitute “26.8, 26.10 or 26.11”;

(c) in paragraph (3AA)(b), for “26.6A” substitute “26.10”; and

(d) in paragraph (3B) for “26.6(2A)” substitute “26.9(3)”.

Amendment of Part 21

7.—(1) In rule 21.10(6), for “Section II or Section III” substitute “Section IV”.

(2) In rule 21.12(9)—

(a) for “Section II, III, or IIIA” substitute “Section IV, Section VI, Section VII or Section VIII”; and

(b) for “45.13 or 45.29J” substitute “45.9 or 45.10”.

Amendment of Part 26

8.  For Part 26 substitute Part 26 as set out in Schedule 1 to these Rules.

Amendment of Part 27

9.—(1) In rule 27.1(2), in the words in parentheses, for “26.6”, in both places it appears, substitute “26.9”.

(2) In rule 27.3, after “fast track” insert “, the intermediate track”.

(3) In rule 27.14—

(a) after paragraph (1), in the words in parentheses, for “Rules 46.11 and 46.13 make” substitute “Rule 46.13 makes”; and

(b) in paragraph (2)—

(i) for sub-paragraph (a) substitute—

“(a) the fixed costs attributable to issuing the claim, calculated in accordance with Table 2 in Practice Direction 45; or”; and

(ii) in sub-paragraph (h), for “the Stage 1 and, where relevant, the Stage 2 fixed costs in rule 45.18”, substitute “the applicable Stage 1 and, where relevant, the Stage 2 fixed costs in Table 10 and Table 11 in Practice Direction 45”.

(4) For rule 27.15 substitute—

“27.15.— (1) Where a claim is allocated to the small claims track and subsequently re-allocated to another track, the costs which may be allowed are those applicable to the track to which the claim is reallocated, as if the claim been allocated to that track at the outset.

(2) Where a claim is reallocated to the small claims track from the multi-track, rule 27.14 shall apply to the period before, as well as after, reallocation, except where a court order or a rule or practice direction provides otherwise.”.

Amendment of Part 28

10.  For Part 28 substitute Part 28 as set out in Schedule 2 to these Rules.

Amendment of Part 29

11.  In rule 29.1, in the second set of words in parentheses, after “claims allocated to the fast track” insert “or intermediate track”.

Amendment of Part 36

12.—(1) In the table of contents of this Part, for the entries for rule 36.20 to the end substitute—

“Deduction of benefits and Lump sum payments	Rule 36.20
MISCELLANEOUS
Cases in which the offeror’s costs have been limited to court fees	Rule 36.21
Section II - Claims to which Sections VI, VII or VIII of Part 45 Apply
Scope of this Section	Rule 36.22
Costs consequences of acceptance of a Part 36 offer	Rule 36.23
Costs consequences following judgment	Rule 36.24
Section III - RTA Protocol and EL/PL Protocol offers to settle
Scope of this Section	Rule 36.25
Form and content of a Protocol offer	Rule 36.26
Time when a Protocol offer is made	Rule 36.27
General provisions	Rule 36.28
Restrictions on disclosure of a Protocol offer	Rule 36.29
Costs consequences following judgment	Rule 36.30
Deduction of benefits	Rule 36.31”.

(2) In rule 36.1—

(a) after paragraph (2) insert—

“(3) Section II of this Part contains rules about Part 36 offers where a claim is one to which Section VI (fixed costs in the fast track), Section VII (fixed costs in the intermediate track) or Section VIII (claims for noise-induced hearing loss) of Part 45 applies.”;

(b) in the paragraph which, going forward, follows paragraph (3)—

(i) renumber that paragraph, paragraph (4); and

(ii) for “Section II” substitute “Section III”.

(3) In rule 36.2, for paragraph (1), substitute—

“(1) This Section—

(a) applies to an offer to settle to which Section II of this Part applies, unless otherwise stated; but

(b) does not apply to an offer to settle to which Section III applies.”.

(4) In rule 36.5—

(a) in paragraph (1)(c), for “36.20” substitute “36.23”; and

(b) in paragraph (3), for “36.22” substitute “36.20”.

(5) In rule 36.11(3), in—

(a) sub-paragraph (b); and

(b) after sub-paragraph (d), in the second set of parentheses,

for “36.22”, in both places it appears, substitute “36.20”.

(6) In rule 36.13, after paragraph (1), omit the words in parentheses.

(7) In rule 36.17(1)—

(a) for “36.21” substitute “36.24”; and

(b) after sub-paragraph (b), omit the words in parentheses.

(8) Omit rule 36.20 and rule 36.21.

(9) Renumber—

(a) rule 36.22, rule 36.20; and

(b) rule 36.23, rule 36.21.

(10) After what, going forward, will be rule 36.21 insert—

“SECTION II Claims to Which Sections VI, VII, or VIII of Part 45 Apply

Scope of this Section and definitions

36.22.— (1) This Section applies where a claim is one to which Section VI, Section VII or Section VIII of Part 45 applies.

(2) In this Section—

(a) “fixed cost medical report” and “soft tissue injury claim” have the meaning ascribed by paragraph 1.1(10A) and (16A) respectively of the RTA Protocol;

(b) for the purposes of rules 36.23 and 36.24, a defendant’s Protocol offer is either—

(i) defined in accordance with rules 36.26 and 36.27; or

(ii) if the claim leaves the Protocol before the Court Proceedings Pack Form is sent to the defendant—

(aa) the last offer made by the defendant before the claim leaves the Protocol; and

(bb) deemed to be made on the first business day after the claim leaves the Protocol; and

(c) reference to—

(i) the “Court Proceedings Pack Form” is a reference to the form used in the Protocol; and

(ii) “business day” is a reference to a business day as defined in rule 6.2.

Costs consequences of acceptance of a Part 36 offer

36.23.— (1) Where a Part 36 offer is accepted within the relevant period, the claimant is entitled to—

(a) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date on which notice of acceptance was served on the offeror; and

(b) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII of Part 45 incurred in any period for which costs are payable to them.

(2) Where—

(a) a defendant’s Part 36 offer relates to part only of the claim; and

(b) at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,

the claimant is entitled to the fixed costs in paragraph (1).

(3) Subject to paragraphs (4) and (5), where a defendant’s Part 36 offer is accepted after the relevant period—

(a) the claimant is entitled to—

(i) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date on which the relevant period expired; and

(ii) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them; and

(b) the claimant is liable for the defendant’s costs in accordance with paragraph (8).

(4) Where a claim no longer continues under the RTA or EL/PL Protocol, then, subject to paragraph (5), where the claimant accepts the defendant’s Protocol offer after the date on which the claim leaves the Protocol—

(a) the claimant is entitled to the applicable Stage 1 and Stage 2 fixed costs in Table 10 or Table 11 in Practice Direction 45; and

(b) the claimant is liable for the defendant’s costs in accordance with paragraph (8).

(5) In a soft tissue injury claim, if the defendant makes a Part 36 offer before the defendant receives a fixed cost medical report, paragraphs (3) and (4) shall only have effect if the claimant accepts the offer more than 21 days after the defendant received the report.

(6) Fixed costs shall be calculated by reference to the amount of the offer which is accepted.

(7) Where the parties do not agree the liability for costs, the court must make an order as to costs.

(8) Subject to paragraph (9) where the court makes an order for costs in favour of the defendant, the defendant is entitled to—

(a) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date of acceptance; and

(b) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them,

less the fixed costs to which the claimant is entitled under paragraph (3)(a)(i) or (4).

(9) Where—

(a) an order for costs is made pursuant to paragraph (3); and

(b) the stage applicable at the date on which the relevant period expires and the stage applicable at the date of acceptance are the same,

the defendant is entitled to the fixed costs applicable to that stage.

(10) The parties are entitled to disbursements allowed in accordance with Section IX of Part 45 incurred in any period for which costs are payable to them.

Costs consequences following judgment

36.24.— (1) Rule 36.17 applies with the following modifications.

(2) Subject to paragraphs (3), (4) and (5), where an order for costs is made pursuant to rule 36.17(3)—

(a) the claimant is entitled to—

(i) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date on which the relevant period expired; and

(ii) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them; and

(b) the claimant is liable for the defendant’s costs in accordance with paragraph (9).

(3) Where rule 36.17(1)(b) applies, the claimant is entitled to—

(a) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date of judgment; and

(b) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them.

(4) Where the court makes an order pursuant to rule 36.17(4), instead of costs awarded on the indemnity basis under rule 36.17(4)(b), the claimant is entitled to additional costs in accordance with paragraph (5).

(5) The additional costs are an amount equivalent to 35% of the difference between the fixed costs for—

(a) the stage applicable when the relevant period expires; and

(b) the stage applicable at the date of judgment,

to which the claimant is entitled under paragraph (3)(a) and (b).

(6) Where a claim no longer continues under the RTA or EL/PL Protocol, then, subject to paragraph (7), where the claimant fails to obtain a judgment more advantageous than the defendant’s Protocol offer—

(a) the claimant is entitled to the applicable Stage 1 and Stage 2 fixed costs in Table 10 or Table 11 in Practice Direction 45; and

(b) the claimant is liable for the defendant’s costs in accordance with paragraph (9); and

(c) in this rule, the amount of the judgment is less than the Protocol offer where the judgment is less than the offer once deductible amounts identified in the judgment are deducted.

(“Deductible amount” is defined in rule 36.20(1)(d).)

(7) In a soft tissue injury claim, if the defendant makes a Part 36 offer or Protocol offer before the defendant receives a fixed cost medical report, paragraphs (2) and (6) shall only have effect in respect of costs incurred by either party more than 21 days after the defendant received the report.

(8) Fixed costs must be calculated by reference to the amount which is awarded.

(9) Where the court makes an order for costs in favour of the defendant, the defendant is entitled to—

(a) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 applicable at the date of judgment; and

(b) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them,

less the fixed costs to which the claimant is entitled under paragraph (2)(a) or (6).

(10) The parties are entitled to disbursements allowed in accordance with Section IX of Part 45 incurred in any period for which costs are payable to them.”.

(11) Renumber Section II, Section III.

(12) In rule 36.24—

(a) renumber that rule 36.25; and

(b) in paragraph (1), for “does not” substitute “and Section II do not”;

(13) Renumber—

(a) current rule 36.25, rule 36.26;

(b) current rule 36.26, rule 36.27; and

(c) current rule 36.27, rule 36.28.

(14) In what, going forward, will now be rule 36.28, in paragraph (b), for “45.18” substitute “45.29”.

(15) Renumber—

(a) current rule 36.28, rule 36.29; and

(b) current rule 36.29, rule 36.30.

(16) In what, going forward, will now be rule 36.30—

(a) in paragraph (2)—

(i) in sub-paragraph (a), for “45.26” substitute “45.37”; and

(ii) in sub-paragraph (b), for “36.26” substitute “36.27”; and

(b) in paragraph (3), for “45.20” substitute “45.30” ; and

(c) in paragraph (4)—

(i) in sub-paragraph (a), for “36.26” substitute “36.37”; and

(ii) in sub-paragraph (b), for “45.20” substitute “45.30”.

(17) In current rule 36.30—

(a) renumber that rule 36.31;

(b) in that rule, for “36.29” substitute “36.30”; and

(c) in the words in parentheses which follow that rule, for “36.22” substitute “36.20”.

Amendment of Part 39

13.  In rule 39.4—

(a) for “28.6” substitute “28.5”; and

(b) in the words in the first set of parentheses, omit “—fast track”.

Amendment of Part 44

14.  In rule 44.1(1), for the definition of fixed costs substitute—

“‘fixed costs’ means costs, the amounts of which are fixed by these Rules;”.

Amendment of Part 45

15.  For Part 45 substitute Part 45 as set out in Schedule 3 to these Rules.

Amendment of Part 46

16.—(1) In the table of contents to this Part, after the entry for rule 46.23 insert—

“SECTION IX COSTS LIMITS IN AARHUS CONVENTION CLAIMS
Scope and interpretation	rule 46.24
Opting out, and other cases where rules 46.26 to 46.28 do not apply to a claimant	rule 46.25
Limit on costs recoverable from a party in an Aarhus Convention claim	rule 46.26
Varying the limit on costs recoverable from a party in an Aarhus Convention claim	rule 46.27
Challenging whether the claim is an Aarhus Convention claim	rule 46.28”.

(2) In rule 46.4(2)(b)(ii), for “Section II or Section III”, substitute “Section IV”.

(3) Omit rule 46.11.

(4) Omit rule 46.12.

(5) In rule 46.13, omit paragraph (2).

(6) After rule 46.23, insert—

“SECTION IX Costs Limits in Aarhus Convention Claims

Scope and interpretation

46.24.— (1) This section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims.

(2) In this Section—

(a) “Aarhus Convention claim” means a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”);

(b) references to a member or members of the public are to be construed in accordance with the Aarhus Convention.

(3) This Section does not apply to appeals other than appeals brought under section 289(1) of the Town and Country Planning Act 1990(2) or section 65(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990(3), which are for the purposes of this Section to be treated as reviews under statute.

(Rule 52.19A makes provision in relation to costs of an appeal.)

(The Aarhus Convention is available on the UNECE website at https://www.unece.org/env/pp/welcome.html.)

Opting out, and other cases where rules 46.26 to 46.28 do not apply to a claimant

46.25.— (1) Subject to paragraph (2), rules 46.26 to 46.28 apply where a claimant who is a member of the public has—

(a) stated in the claim form that the claim is an Aarhus Convention claim; and

(b) filed and served with the claim form a schedule of the claimant’s financial resources, which is verified by a statement of truth and provides details of—

(i) the claimant’s significant assets, liabilities, income and expenditure; and

(ii) in relation to any financial support which any person has provided or is likely to provide to the claimant, the aggregate amount which has been provided and which is likely to be provided.

(2) Subject to paragraph (3), rules 46.26 to 46.28 do not apply where the claimant has stated in the claim form that although the claim is an Aarhus Convention claim, the claimant does not wish those rules to apply.

(3) If there is more than one claimant, rules 46.26 to 46.28 do not apply in relation to the costs payable by or to any claimant who has not acted as set out in paragraph (1), or who has acted as set out in paragraph (2), or who is not a member of the public.

Limit on costs recoverable from a party in an Aarhus Convention claim

46.26.— (1) Subject to rules 46.25 and 46.28, a claimant or defendant in an Aarhus Convention claim may not be ordered to pay costs exceeding the amounts in paragraph (2) or (3) or as varied in accordance with rule 46.27.

(2) For a claimant the amount is—

(a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person;

(b) £10,000 in all other cases.

(3) For a defendant the amount is £35,000.

(4) In an Aarhus Convention claim with multiple claimants or multiple defendants, the amounts in paragraphs (2) and (3) (subject to any direction of the court under rule 46.27) apply in relation to each such claimant or defendant individually and may not be exceeded, irrespective of the number of receiving parties.

Varying the limit on costs recoverable from a party in an Aarhus Convention claim

46.27.— (1) The court may vary the amounts in rule 46.26 or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim.

(2) The court may vary such an amount or remove such a limit only on an application made in accordance with paragraphs (5) to (7) (“an application to vary”) and if satisfied that—

(a) to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and

(b) in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant.

(3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either—

(a) exceed the financial resources of the claimant; or

(b) are objectively unreasonable having regard to—

(i) the situation of the parties;

(ii) whether the claimant has a reasonable prospect of success;

(iii) the importance of what is at stake for the claimant;

(iv) the importance of what is at stake for the environment;

(v) the complexity of the relevant law and procedure; and

(vi) whether the claim is frivolous.

(4) When the court considers the financial resources of the claimant for the purposes of this rule, it must have regard to any financial support which any person has provided or is likely to provide to the claimant.

(5) Subject to paragraph (6), an application to vary must—

(a) if made by the claimant, be made in the claim form and provide the claimant’s reasons why, if the variation were not made, the costs of the proceedings would be prohibitively expensive for the claimant;

(b) if made by the defendant, be made in the acknowledgment of service and provide the defendant’s reasons why, if the variation were made, the costs of the proceedings would not be prohibitively expensive for the claimant; and

(c) be determined by the court at the earliest opportunity.

(6) An application to vary may be made at a later stage if there has been a significant change in circumstances (including evidence that the schedule of the claimant’s financial resources contained false or misleading information) which means that the proceedings would now—

(a) be prohibitively expensive for the claimant if the variation were not made; or

(b) not be prohibitively expensive for the claimant if the variation were made.

(7) An application under paragraph (6) must—

(a) if made by the claimant—

(i) be accompanied by a revised schedule of the claimant’s financial resources or confirmation that the claimant’s financial resources have not changed; and

(ii) provide reasons why the proceedings would now be prohibitively expensive for the claimant if the variation were not made; and

(b) if made by the defendant, provide reasons why the proceedings would now not be prohibitively expensive for the claimant if the variation were made.

(Rule 39.2(3)(c) makes provision for a hearing (or any part of it) to be in private if it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality.)

Challenging whether the claim is an Aarhus Convention claim

46.28.— (1) Where a claimant has complied with rule 46.25(1), and subject to rule 46.25(2) and (3), rule 46.26 applies unless—

(a) the defendant has in the acknowledgment of service—

(i) denied that the claim is an Aarhus Convention claim; and

(ii) set out the defendant’s grounds for such denial; and

(b) the court has determined that the claim is not an Aarhus Convention claim.

(2) Where the defendant denies that the claim is an Aarhus Convention claim, the court must determine that issue at the earliest opportunity.

(3) In any proceedings to determine whether the claim is an Aarhus Convention claim—

(a) if the court holds that the claim is not an Aarhus Convention claim, it shall, except for good reason, make no order for costs in relation to those proceedings;

(b) if the court holds that the claim is an Aarhus Convention claim, it shall, except for good reason, order the defendant to pay the claimant’s costs of those proceedings to be assessed on the standard basis, and that order may be enforced even if this would increase the costs payable by the defendant beyond the amount stated in rule 46.26(3) or any variation of that amount.”.

Amendment of Part 52

17.  In rule 52.19A—

(a) in paragraph (1)—

(i) for “Section VII of Part 45” substitute “Section IX of Part 46”; and

(ii) for “45.43 to 45.45” substitute “46.26 to 46.28”; and

(b) in paragraph (2), for “45.43 to 45.45” substitute “46.26 to 46.28”.

Amendment of Part 54

18.  In rule 54.6(1), after paragraph (d), in the words in parentheses, for “45.41 to 45.44” substitute “46.24 to 46.27”.

Amendment of Part 55

19.—(1) In rule 55.8(3)(a), after “the fast track” insert “, the intermediate track”.

(2) In rule 55.9—

(a) in paragraph (1)(a), for “26.8” substitute “26.13”; and

(b) in paragraph (3), for “rule 45.38 (amount of fast track costs)” substitute “Part 45”.

(3) In rule 55.36(3)(a), after “the fast track” insert “, the intermediate track”.

(4) In rule 55.37—

(a) in paragraph (1)(a), for “26.8” substitute “26.13”; and

(b) in paragraph (3), for “rule 45.38 (amount of fast track costs)” substitute “Part 45”.

Amendment of Part 63

20.  In rule 63.1(3)—

(a) for “26.3(1)” substitute “26.4(1)”;

(b) for “26.3(1B)” substitute “26.4(2)”; and

(c) for “26.4 to 26.10” substitute “26.5 to 26.18”.

Amendment of Part 65

21.—(1) In rule 65.18(3)(a), after “fast track” insert “, intermediate track”.

(2) In rule 65.19(a), for “26.8” substitute “26.13”.

Lord Justice Birss

Mr Justice Kerr

Mr Justice Trower

Master Cook

His Honour Judge Bird

District Judge Clarke

Isabel Hitching KC

Tom Montagu-Smith KC

Ben Roe

Ian Curtis-Nye

I allow these Rules.

Signed by authority of the Lord Chancellor

Bellamy

Parliamentary Under Secretary of State

Ministry of Justice

22nd May 2023