Civil procedure rules

The
first day of October this year saw a change to the Civil Procedure
Rules (the CPR), the rules that govern the conduct of the civil courts
in England and Wales – as reported in Press Gazette last week. It was
introduced, without any consultation, by the Civil Procedure Rules
Committee as part of the decidedly unglamorous “Civil Procedure Rules
40th Update” – and the change, though only constituting a few words,
may well have a large effect.

It is rule 5.4(5)(a)(i) that has
been altered. This section of the CPR has, since its introduction in
1999, governed the rights of third parties to obtain copies of certain
court documents, principally the claim form. The rule now provides that
third parties may, unless the court orders otherwise, “obtain from the
records of the court a copy of… a claim form, but not any documents
filed with or attached to or intended by the claimant to be served with
such claim form”.

It is the words in bold that have been added, and the effect of them could be significant.

Journalists
are now faced with the prospect of being able to obtain, from the court
record, only those details of the claim that are included on the claim
form document itself. In practice, this could be a tiny amount of
information. Lawyers are often unable to fit their “concise”
description of the case into the small space provided by the standard
form and, as a result, often refer to a further document appended to it.

On
the face of it, the words added to the rule would prevent anyone from
seeing this document and, at the very least, from understanding the
subject matter of a claim. In cases involving a large number of
parties, details of their names and addresses are often included on
attachments to the claim form. Access to these details would also seem
to be restricted now.

Perhaps more worryingly, access to
Particulars of Claim, which formed part of the claim form, and
documents included with the Particulars could also be restricted.

Not
surprisingly, where it has been noticed, reaction to the change has
been quick. At a time when the issue of open justice is in the
spotlight, there is genuine concern that a vital component of the UK
legal system is being eroded. As reported in PG last week, a number of
newspaper groups, including Associated Newspapers, Mirror Group
Newspapers, Times Newspapers Limited and News Group Newspapers,
instructed lawyers to write to the Rules Committee to raiany and varied
concerns including, fundamentally, the importance of the media’s
ability to publish fair and accurate reports of court proceedings and
the need to avoid interference with the right to freedom of expression.

It is far from clear, however, what the result of their action will be.

The
Rules Committee was entitled to make the change that it did and it was
also under no obligation to consult externally. It remains to be seen
whether Civil Procedure Rules 40th Update will be followed by some
much-needed clarification.

Phil Gorski is assistant solicitor at Wiggin LLP

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