Citation, commencement and interpretation

1.  These Rules may be cited as the Civil Procedure (Amendment No. 4) Rules 2004 and shall come into force on 1 April 2005.

2.  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(2);

(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.

Amendment to the Civil Procedure Rules 1998

3.  In rule 21.10, after paragraph (2), insert—

(3) In proceedings to which Section II of Part 45 applies, the court shall not make an order for detailed assessment of the costs payable to the child or patient but shall assess the costs in the manner set out in that Section.”.

4.—(1) In rule 22.1(1)—

(a)at the end of sub-paragraph (e), omit “and”; and

(b)for sub-paragraph (f), substitute—

“(f)a certificate of service; and

(g)any other document where a rule or practice direction requires.”.

(2) In rule 22.1(4)—

(a)at the end of sub-paragraph (a), omit “or”; and

(b)in sub-paragraph (b), after “the maker of the witness statement”—

(i)omit the comma; and

(ii)insert—

“;or

(c)in the case of a certificate of service, the person who signs the certificate,”.

5.  In rule 25.7—

(a)for paragraph (1) substitute—

“(1) The court may only make an order for an interim payment where any of the following conditions are satisfied—

(a)the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;

(b)the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;

(c)it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim;

(d)the following conditions are satisfied—

(i)the claimant is seeking an order for possession of land (whether or not any other order is also sought); and

(ii)the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant’s occupation and use of the land while the claim for possession was pending; or

(e)in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied—

(i)the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and

(ii)all the defendants are either—

(a)a defendant that is insured in respect of the claim;

(b)a defendant whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself; or

(c)a defendant that is a public body.”; and

(b)omit paragraphs (2) and (3).

6.  In rule 40.1, after “any other of these Rules” insert “or a practice direction”.

7.  In rule 41.3, omit paragraph (6).

8.  In rule 44.12A—

(a)at the beginning of sub-paragraph (1)(c), omit “except as referred to in paragraph (1A)”;

(b)omit paragraph (1A); and

(c)at the end of paragraph (1), omit the cross-reference to rule 21.10.

9.  In Part 45—

(a)for the table of contents for Section I, substitute the table of contents as set out in Part I of Schedule 1 to these Rules; and

(b)for Section I of Part 45, substitute the text as set out in Part II of Schedule 1 to these Rules.

10.  In Part 45, in the table of contents and in the heading for Section II, “Road Traffic Accidents - Fixed Recoverable Costs in Costs-Only Proceedings”, omit “in Costs-Only Proceedings”.

11.  In rule 45.7—

(a)for paragraph (1) substitute—

“(1) This Section sets out the costs which are to be allowed in—

(a)costs-only proceedings under the procedure set out in rule 44.12A; or

(b)proceedings for approval of a settlement or compromise under rule 21.10(2),

in cases to which this Section applies.”; and

(b)at the end of paragraph (1), omit the cross-reference to 44.12A.

12.  In rule 45.14, in the heading, after “Costs of the costs-only proceedings”, insert “or the detailed assessment”.

13.  For rule 45.18(2)(c) substitute—

“(c)the parties agree damages of £500,000 or less and it is reasonable to expect that if the court had made an award of damages, it would have awarded damages greater than £500,000, disregarding any reduction the court may have made in respect of contributory negligence.”

14.  For rule 48.5(2)(b) substitute—

“(b)on an assessment under paragraph (a), the court must also assess any costs payable to that party in the proceedings, unless—

(i)the court has issued a default costs certificate in relation to those costs under rule 47.11; or

(ii)the costs are payable in proceedings to which Section II of Part 45 applies.”.

15.  In rule 63.13—

(a)omit paragraph (2); and

(b)in paragraph (3), for “Other claims” substitute “Claims”.

16.  After Part 65, insert Part 67 as set out in Schedule 2 to these Rules.

17.  The following provisions are revoked—

(a)RSC Order 62;

(b)RSC Order 106; and

(c)CCR Order 38.

Rule 9

SCHEDULE 1

PART I

PART III FIXED COSTS

Scope of this Section

45.1.—(1) This Section sets out the amounts which, unless the court orders otherwise, are to be allowed in respect of solicitors' charges in the cases to which this Section applies.

(2) This Section applies where—

(a)the only claim is a claim for a specified sum of money where the value of the claim exceeds £25 and—

(i)judgment in default is obtained under rule 12.4(1);

(ii)judgment on admission is obtained under rule 14.4(3);

(iii)judgment on admission on part of the claim is obtained under rule 14.5(6);

(iv)summary judgment is given under Part 24;

(v)the court has made an order to strike out^(GL) a defence under rule 3.4(2)(a) as disclosing no reasonable grounds for defending the claim; or

(vi)rule 45.3 applies;

(b)the only claim is a claim where the court gave a fixed date for the hearing when it issued the claim and judgment is given for the delivery of goods, and the value of the claim exceeds £25;

(c)the claim is for the recovery of land, including a possession claim under Part 55, whether or not the claim includes a claim for a sum of money and the defendant gives up possession, pays the amount claimed, if any, and the fixed commencement costs stated in the claim form;

(d)the claim is for the recovery of land, including a possession claim under Part 55, where one of the grounds for possession is arrears of rent, for which the court gave a fixed date for the hearing when it issued the claim and judgment is given for the possession of land (whether or not the order for possession is suspended on terms) and the defendant—

(i)has neither delivered a defence, or counterclaim, nor otherwise denied liability; or

(ii)has delivered a defence which is limited to specifying his proposals for the payment of arrears of rent;

(e)the claim is a possession claim under Section II of Part 55 (accelerated possession claims of land let on an assured shorthold tenancy) and a possession order is made where the defendant has neither delivered a defence, or counterclaim, nor otherwise denied liability;

(f)the claim is a demotion claim under Section III of Part 65 or a demotion claim is made in the same claim form in which a claim for possession is made under Part 55 and that demotion claim is successful; or

(g)a judgment creditor has taken steps under Parts 70 to 73 to enforce a judgment or order.

(The practice direction supplementing rule 7.9 sets out the types of case where a court will give a fixed date for a hearing when it issues a claim)

(3) Any appropriate court fee will be allowed in addition to the costs set out in this Section.

(4) The claim form may include a claim for fixed commencement costs.

Amount of fixed commencement costs in a claim for the recovery of money or goods

45.2.—(1) The amount of fixed commencement costs in a claim to which rule 45.1(2)(a) or (b) applies—

(a)shall be calculated by reference to Table 1; and

(b)the amount claimed, or the value of the goods claimed if specified, in the claim form is to be used for determining the band in Table 1 that applies to the claim.

(2) The amounts shown in Table 4 are to be allowed in addition, if applicable.

Amount of fixed commencement costs in a claim for the recovery of land or a demotion claim

45.2A.—(1) The amount of fixed commencement costs in a claim to which rule 45.1(2)(c), (d) or (f) applies shall be calculated by reference to Table 2.

(2) The amounts shown in Table 4 are to be allowed in addition, if applicable.

When defendant only liable for fixed commencement costs

45.3.—(1) Where—

(a)the only claim is for a specified sum of money; and

(b)the defendant pays the money claimed within 14 days after service of particulars of claim on him, together with the fixed commencement costs stated in the claim form,

the defendant is not liable for any further costs unless the court orders otherwise.

(2) Where—

(a)the claimant gives notice of acceptance of a payment into court in satisfaction of the whole claim;

(b)the only claim is for a specified sum of money; and

(c)the defendant made the payment into court within 14 days after service of the particulars of claim on him, together with the fixed costs stated in the claim form,

the defendant is not liable for any further costs unless the court orders otherwise.

Costs on entry of judgment in a claim for the recovery of money or goods

45.4.  Where—

(a)the claimant has claimed fixed commencement costs under rule 45.2; and

(b)judgment is entered in a claim to which rule 45.1(2)(a) or (b) applies in the circumstances specified in Table 3, the amount to be included in the judgment for the claimant’s solicitor’s charges is the total of—

(i)the fixed commencement costs; and

(ii)the relevant amount shown in Table 3.

Costs on entry of judgment in a claim for the recovery of land or a demotion claim

45.4A.—(1) Where—

(a)the claimant has claimed fixed commencement costs under rule 45.2A; and

(b)judgment is entered in a claim to which rule 45.1(2)(d) or (f) applies, the amount to be included in the judgment for the claimant’s solicitor’s charges is the total of—

(i)the fixed commencement costs; and

(ii)the sum of £57.25.

(2) Where an order for possession is made in a claim to which rule 45.1(2)(e) applies, the amount allowed for the claimant’s solicitor’s charges for preparing and filing—

(a)the claim form;

(b)the documents that accompany the claim form; and

(c)the request for possession,

is £79.50.

Miscellaneous fixed costs

45.5.  Table 4 shows the amount to be allowed in respect of solicitor’s charges in the circumstances mentioned.

Fixed enforcement costs

45.6.  Table 5 shows the amount to be allowed in respect of solicitors' costs in the circumstances mentioned. The amounts shown in Table 4 are to be allowed in addition, if applicable.

Rule 16

SCHEDULE 2

PART 67PROCEEDINGS RELATING TO SOLICITORS

Scope and interpretation

67.1.—(1) This Part contains rules about the following types of proceedings relating to solicitors—

(a)proceedings to obtain an order for a solicitor to deliver a bill or cash account and proceedings in relation to money or papers received by a solicitor (rule 67.2);

(b)proceedings under Part III of the Solicitors Act 1974(3) relating to the remuneration of solicitors (rule 67.3); and

(c)proceedings under Schedule 1 to the Solicitors Act 1974(4) arising out of the Law Society’s intervention in a solicitor’s practice (rule 67.4).

(2) In this Part—

“the Act” means the Solicitors Act 1974; and

“LLP” means limited liability partnership.

(Part 48 and Section 56 of the Costs Practice Direction contain provisions about the procedure and basis for the detailed assessment of solicitor and client costs under Part III of the Act)

(The practice direction supplementing Part 52 contains provisions about appeals to the High Court from the Solicitors Disciplinary Tribunal under section 49 of the Act)

Power to order solicitor to deliver cash account etc.

67.2.—(1) Where the relationship of solicitor and client exists or has existed, the orders which the court may make against the solicitor, on the application of the client or his personal representatives, include any of the following—

(a)to deliver a bill or cash account;

(b)to pay or deliver up any money or securities;

(c)to deliver a list of the moneys or securities which the solicitor has in his possession or control on behalf of the applicant;

(d)to pay into or lodge in court any such money or securities.

(2) An application for an order under this rule must be made—

(a)by Part 8 claim form; or

(b)if the application is made in existing proceedings, by application notice in accordance with Part 23.

(3) If the solicitor alleges that he has a claim for costs against the applicant, the court may make an order for—

(a)the detailed assessment and payment of those costs; and

(b)securing the payment of the costs, or protecting any solicitor’s lien.

Proceedings under Part III of the Act

67.3.—(1) A claim for an order under Part III of the Act for the assessment of costs payable to a solicitor by his client—

(a)which—

(i)relates to contentious business done in a county court; and

(ii)is within the financial limit of the county court’s jurisdiction specified in section 69(3) of the Act(5),

may be made in that county court;

(b)in every other case, must be made in the High Court.

(Rule 30.2 makes provision for any county court to transfer the proceedings to another county court for detailed assessment of costs)

(Provisions about the venue for detailed assessment proceedings are contained in rule 47.4, Section 31 of the Costs Practice Direction and the Costs Pilot Scheme Practice Direction supplementing Part 47)

(2) A claim for an order under Part III of the Act must be made—

(a)by Part 8 claim form; or

(b)if the claim is made in existing proceedings, by application notice in accordance with Part 23.

(A model form of claim form is annexed to the Costs Practice Direction)

(3) A claim in the High Court under Part III of the Act may be determined by—

(a)a High Court judge;

(b)a Master, a costs judge or a district judge of the Principal Registry of the Family Division; or

(c)a district judge, if the costs are for—

(i)contentious business done in proceedings in the district registry of which he is the district judge;

(ii)contentious business done in proceedings in a county court within the district of that district registry; or

(iii)non-contentious business.

Proceedings under Schedule 1 to the Act

67.4.—(1) Proceedings in the High Court under Schedule 1 to the Act must be brought—

(a)in the Chancery Division; and

(b)by Part 8 claim form, unless paragraph (4) below applies.

(2) The heading of the claim form must state that the claim relates to a solicitor and is made under Schedule 1 to the Act.

(3) Where proceedings are brought under paragraph 6(4) or 9(8) of Schedule 1 to the Act, the court will give directions and fix a date for the hearing immediately upon issuing the claim form.

(4) If the court has made an order under Schedule 1 to the Act, any subsequent application for an order under that Schedule which has the same parties may be made by a Part 23 application in the same proceedings.

(5) The table below sets out who must be made a defendant to each type of application under Schedule 1.

(6) At any time after the Law Society has issued an application for an order under paragraph 5 of Schedule 1 to the Act, the court may, on an application by the Society—

(a)make an interim order under that paragraph to have effect until the hearing of the application; and

(b)order the defendant, if he objects to the order being continued at the hearing, to file and serve written evidence showing cause why the order should not be continued.

Explanatory Note

(This note is not part of the Rules)

These Rules add the following new provisions to the Civil Procedure Rules 1998 (“the Rules”)—

• A new Section I of Part 45, in substitution for the existing Section I, which rationalises the provisions on fixed costs by incorporating the provisions of the former Rules of the Supreme Court and County Court Rules in Schedules I and II to the Rules, RSC Order 62 and CCR Order 38 (which are revoked by rule 15). The new Section I also extends the fixed costs regime to High Court possession claims under Part 55 which are not currently subject to fixed costs and applies fixed costs to demotion claims under Part 65.

• A new Part 67, which makes provision about certain types of proceedings against solicitors, including applications for a solicitor to deliver a bill or cash account; applications relating to money or securities held by a solicitor for a client; applications for the assessment of a solicitor’s costs; and proceedings relating to intervention by the Law Society in a solicitor’s practice. Part 67 replaces the former Rules of the Supreme Court in Schedule I to the Rules, RSC Order 106, which is revoked.

In addition, the following amendments are made:

• Rule 22.1 is amended to provide that a certificate of service must be verified by a statement of truth, and that such a statement shall verify the belief of the person who signs the certificate;

• Rule 25.7 is amended in respect of the categories of defendant against whom an interim payment order may be made;

• Rule 45.7(1) is amended to clarify that the fixed recoverable costs regime comprised in Part 45, Section II should be followed where the court’s approval of a settlement in favour of an infant is required. Consequential amendments are made to rules 21.10, 44.12A, 45.7, 45.14 and 48.5;

• Rule 45.18(2)(c) is amended to clarify the circumstances in which a party may apply for an alternative percentage increase where the parties have agreed damages of £500,000 or less.

The opportunity has also been taken to make a number of other minor amendments to the Rules currently in force.

The amendments will come into force on 1st April 2005.