Long ago, in the mid 1990s the Nottingham County Court had a local practice direction, agreed by the District Judges, which amongst other things provided that witness statements should be exchanged in small claims cases and an for an infant approval hearing, an affidavit from the child’s solicitor setting out certain particulars was required.
The practice direction had a blue cover and was available for the princely sum of £2 from the court office, in those halcyon days, when courts had offices that were open to the public.
As this was long before the internet, solicitors from out of town, routinely breached the provisions of the practice direction, not being aware of it, and found out about their ignorance when a “show cause” wasted costs Order arrived in the post. Happy days.
One of the Woolf Reforms was to abolish local practice directions.
It scarcely seems credible now, but what was contemplated was a slimmed down set of civil procedure rules, which avoided the complexities and arcane practices of the Rules of the Supreme Court and the County Court Rules.
But in the last 20 years, local practice directions have crept back, though often not described as such. Instead, judges create their own termplate orders and preferred ways of doing things. The legality of these “directions” I have long thought dubious.
The leading case of Bovale Limited v Secretary of State for Communities and Local Government [2009] EWCA Civ 171 is a clear authority for how Practice Directions or even “practice directions” must be made according to the procedure prescribed by sections 5 and 9 of the Civil Procedure Act 1997, with the consent of the Lord Chief Justice. It is not open to a group of county court judges to simply decide what the procedure will be in their court any more.
Thus in credit hire claims many judges routinely make orders for specific disclosure of certain classes of document such as bank statements, wage details, and other forms of financial documentation before an order for standard disclosure has been complied with. They also attach sanctions in the form of peremptory orders for breach, before any default has taken place.
It has to be said, that the reason why they do it, is because of the degree of non-compliance with court Orders, that has been demonstrated in the past by some solicitors who run credit hire claims. The district judges are keen not to waste time in their busy lists, dealing with applications concerning non-compliance.
Equally, some solicitors acting for insurance companies, will, with a straight face, seek to include within the directions Order, provision for specific disclosure of V5 certificates, or insurance certificates or MOT certificates, when they know full well who is the registered keeper of a car, who insures it, and whether or not it has an MOT from other sources. But it’s good to keep one’s opponent’s on their toes and to help them avoid complacency setting in.
So it is of considerable interest that the Civil Procedure Rules Committee is promulgating a draft Order, to be of general application in credit hire claims. The consultation paper can be found here: Model Order Directions to be Used in all Credit Hire Cases.
Shrewd observers will note that it mirrors what is actually happening in practice at the moment.
What it could have required and what would actually be more useful, would be for a claimant to file something akin to “an affidavit of means”, explaining why he says he is impecunious, what his disposable income is, and what he spends his money on.
This might have gone some way to resolving the “push me, pull you” argument on impecuniosity at trial, or at least shortened what is always the most turgid part of cross examination.