One to watch

I have had three emails since coming back to work on Monday regarding the creeping length and content of portal directions. 

You may recall that I sent a note around about this last year when the Rules Committee were meant to be addressing the inconsistent directions that the DCP process had created.

It was Alum Ullah from Bond Turner who had managed to get this on the agenda. For those of you that don’t know Alum, amongst other roles is Vice President of the Liverpool Law Society and was leading on these issues for Bond Turner.There were a couple of issues that were raised with me. The first related to the narrow window and the sequence provided in the standard directions obliging the Claimant to provide a witness statement relating to need and impecuniosity two months before the date stipulated for the disclosure of witness statements. 

The second relates to the obligation for a partner of the Claimant law firm to provide a witness statement. I’ve copied the relevant paragraph below.

Clearly, the right thing to do with this one is to apply to set this direction aside. It is clearly biased, and I would have thought providing an answer to 34c is just plain impossible.On the issue of DCP directions generally,  Alum has remined me that the last inbound communication he had was that the standard DCP directions were going to be reviewed by the Civil Procedure Rules Committee. I provided that update last year.

It seems bizarre, but normal for credit hire litigation I guess, that the directions for credit hire were never approved by the CPRC and there was never any consultation on the issue. This sounds about standard form for anything related to credit hire litigation, doesn’t it? The directions were clearly just fudged by the authors of the DCP and sub-committee. 

Alum’s view, and I think he is right, is that I should invite members to adopt a concerted approach and make a formal complaint for resolution by the Rules Committee. If your firm were to do that, and could send me a copy of your complaint, I am happy to share it with Alum. He is prepared to contact the Secretary once there have been several complaints. I think that is a useful approach, and that Alum is a good focal point because he was mentioned positively in the DCP committee minutes when this complaint was first made. He already has a bit of a foot in the door.

In terms of the current position, my understanding is that the CPRC responded to the previous challenge in October last year stating that the matter was “in train” but competing with other priorities. Perhaps predictably, however, the initial view was that, as judges have discretion, and since wider issues have not materialised in practice, that the issue did not appear to be significant.

Clearly this ‘review’ has been going on for some time. I’m not sure whether getting another round of complaints lodged would move the dial knowing how the establishment disregard credit hire. By the same token, if we do nothing then I anticipate you will end up losing even more ground as these directions continue to evolve. On balance, doing nothing seems the wrong choice and so if you do want to draft a complaint then I would be happy to share it with Alum so he can attempt to progress the matter, indicating that there are wider issues evident in practice with the likelihood on an increase in the number of applications to set aside or vary elements of the standard directions.

UPDATE:

My note from this morning triggered a response that I have not seen in a while, specifically in respect of the inclusion of paragraph 34 requiring a partner from the firm representing the Claimant o make a witness statement. Thank you to those of you who have responded.

I am aware from the responses that most of these directions have been made by DDJ KM Rees in Croydon and that several of you are in the process of making applications to vary. Apparently, the judge intends to ensure similar directions are made in all cases. 

Elsewhere, I have heard of another impacted case in Willesden. This is one in which the Claimant has PTA following a CCMC. Andrew Hogan has been instructed. 

Keoghs have been on the other side of at least one of these but were not advocating for the inclusion of the paragraph (yet) and said they were neutral on the issue. I expect that this is a state of mind that will change when they realise how much mischief they can cause and whether they can persuade a DJ to extend the scope.

I think that if this is going to become a new front in credit hire litigation, and I am grateful to Guy Kirkham at Mansfield for suggesting this, that it would be helpful if everyone could adopt the same approach / similar wording if applications are required. 

Maximising the prospects for achieving the right result sounds like a better plan than everyone doing their own thing and risking rejection and an adverse outcome that sustains on appeal. 

I’m happy to help on sharing anything if that sounds like a plan. I think it would also be helpful if you could share if any other courts adopt the same wording and especially if you have success (or rejection) in relation to any applications. Helpful for everyone if we could build some intelligence.