A completely new set of rules has been implemented and they apply to both the High Court and the county courts. They replaced separate rules for the two systems. The changes were considerable and the rules are written in plain English. They are in parts and contain less detail than the rules that they replaced. They set out the principles and the detail is given in practice directions. Old precedents and case law are generally not relevant to the application of the new rules.
Nearly all the parts of the procedural rules are accompanied by practice directions. These are frequently much longer than the rules and provide detail in support of the principles set out in the rules. They should be read in conjunction with the rules.
The deemed date of service was reduced from seven days after posting by first class post to two days after posting by first class post. It would be nice to think that this change resulted from a well-founded belief that the reliability of Royal Mail's services had improved and that the improvement would be maintained, but perhaps this reasoning is too credulous. County court bailiffs are no longer available to serve documents.
This is arguably the most fundamental and important of the changes. Unlike the system prior to April 1999, the courts now take a proactive role in the management of cases before they reach trial. They do not manage every detail of cases, but concentrate on key events leading up to the hearing. The level and detail of case management is proportionate to the amount of money involved and the complexity of the case. A judge has very considerable discretion to direct the conduct of a case.
Plain English is used throughout the rules and practice directions, the court forms and throughout the system. Centuries-old terms were replaced by modern ones.
Less cases than formerly may be heard in the High Court rather than a county court.
All cases are allocated to one of three tracks and the way that cases are managed and heard differs in each of the tracks.
Protocols have been issued for various types of claim, medical negligence being an example. There is no protocol for debt collection cases but the parties are expected to behave responsibly in the spirit of the protocols. This includes not normally issuing a claim without giving a warning first and making reasonable efforts to know and understand the other side's case and point of view. Of course in debt collection cases there often is no other point of view - it is just that the defendant has an unethical wish to hold on to the money for as long as possible. A party that does not behave within the spirit of the protocols may be penalised on costs.
The claim form and other key forms now contain a statement of truth. A statement of truth should only be signed if the person signing has an honest belief that the facts or allegations contained in it are true. If a person signs without this honest belief, he may be committing a contempt of court for which he may be punished.
The system is intended to encourage the parties to reach a settlement without coming to trial. Active case management means that facts and issues are exposed at an earlier stage and this increases the likelihood of a pre-trial settlement. Furthermore, the court's discretion over the awarding of costs may exert pressure on the parties to settle. Either or both of the parties may request a one month stay in the proceedings at the time that the allocation questionnaire is filed. This is so that negotiation, mediation or arbitration can be pursued. The court is very likely to grant such a request.
This is closely related to the encouragement of the parties to reach a settlement. It is a new formal way for the parties to make offers to settle. Refusal can have expensive consequences concerning costs if the outcome is less favourable than the rejected offer.
Defendants can now apply for summary judgment as well as claimants. Prior to the changes only claimants could do so. The standard required is now 'no real prospect of success' which is a relaxation of the previous standard.
This now normally only happens when the defendant is an individual not in business. Some changes concerning enforcement were introduced on 25th March 2002. These were in three areas as follows:
This has replaced the request for oral examination, although it means the same thing. An applicant must use one of two forms instead of the single form used before. The additional form is for use when the person required is an officer of a debtor company. The content of the forms has been improved and the requirements reformed.
This replaces the centuries-old term 'garnishee order' although its purpose is the same. There is a completely new form which replaces the old procedure incorporating a sworn affidavit.
It was formerly necessary to apply by swearing an affidavit. This has changed and one of two forms must be used. One of them relates to land or property and the other relates to securities.
Further reforms are likely to be implemented piecemeal over a number of years, rather than in just one package. Some reforms will require legislation and some can be implemented as administrative decisions. Many of the reforms will concern the seizing of the judgment debtor's goods. There will be many detailed changes relating to the powers of bailiffs and Sheriffs.
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05182010
1. Debt recovery legal documents and right timing for legal response
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