The old new Civil Procedure Rules and the new (old) requirement for fairness

02 Mar 2022

Housing

By Catherine Rowlands

The Civil Procedure Rules have gone through many changes since they came into force in 1999. On 4 April 2022, the 140th amendment will come into force. 140 amendments in 23 years is an average of just over 6 a year.

23 years in, the word “new” has finally been removed from the first Rule:

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

1999 isn’t recent any longer, it appears!

Of perhaps greater relevance to housing practitioners is the change to CPR 65, relating to applications for anti-social behaviour injunctions.

The rule change comes in response to the Civil Justice Council report about legal aid for such injunctions and the need for Defendants to be made aware of the possibility of legal aid. Many practitioners and even judges remain unaware that civil legal aid is available for a person facing an application for an injunction under the 2014 Act. Providers have the power to grant certificates for emergency representation, without having to wait for a decision from the Legal Aid Agency. Committals are treated as “quasi-criminal” (Regulation 9 of the Criminal Legal Aid (General) Regulations 2013) and legal aid is accordingly available, even though the case is heard in the County Court.

The Civil Justice Council report comments that failure to inform a respondent of the right to legal aid is likely to be viewed as a breach of common law principles of fairness and of ECHR art.6(3)(c).

The Civil Procedure Rules at Rule 81.4 already provide that any application to commit a person for contempt must tell the Defendant:

(i) that the defendant has the right to be legally represented in the contempt proceedings;
(j) that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test.

Part 65 is now being amended to a like effect.

In relation to rule 65.18(1), which gives directions about what the Court can do at a first hearing, the amendment will mean that before even considering whether to make case management directions or to decide the case there and then, the Court must first “take appropriate steps to ensure that the respondent is aware of their entitlement to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test”.

Rule 65.43(2) is similarly being amended to require that any application for an injunction must include a statement that the respondent is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test.

The Legal Aid Agency gives guidance in a leaflet which can be found here Apply for legal aid in civil contempt – committal proceedings (publishing.service.gov.uk) and it may be useful to provide this to a Respondent or their legal representative.

This amendment really does no more than embedding what was already best practice. Both Courts and social landlords will find it easier to deal with a represented Defendant or Respondent in anti-social behaviour and committal proceedings, and the take-up of legal aid, even at short notice, for these proceedings is to be encouraged.

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