Rules are Rules

Image: Nicola Ricca/riccanicola/Unsplash
Image: Nicola Ricca/riccanicola/Unsplash

For those who appear regularly in the County Court and High Court, references to the Civil Procedure Rules 1998 are frequent occurrences. When sitting in their criminal and family jurisdictions, references to both the Criminal Procedure Rules and Family Procedure Rules are commonplace.

Against that background it is somewhat strange that when civil proceedings come before the Magistrates’ Courts, often relating to six or seven figure sums between professionally represented parties, that same familiarity with the applicable rules isn’t always evident.

As I’ll go on to discuss, that isn’t because rules don’t exist.

Whatever the reason for their oft-position in the shadows, those appearing in civil proceedings can better assist the court and their clients by taking the time to become more familiar with the applicable rules. Plainly an encyclopaedic knowledge isn’t necessary (and for most of us, is not realistic), but knowing the rules of general application and the key sources of rules should be the aim.

In this article, rather than trying to cover all forms of civil proceedings in the Magistrates’ Courts, I’ll focus on the generally applicable case management rules.

Core Objectives

Rule 3A(1) of the Magistrates’ Courts Rules 1981 provides;

(1)  The court must actively manage the case. That includes—

Rule 3A of the 1981 Rules, in addition to setting out the core objectives, goes on to provide a suite of case management requirements and powers which can assist those seeking to progress civil proceedings before the Magistrates’ Court. It is worth reading the Rule 3A in full, however I’ll go on to highlight those parts I typically draw assistance from and in what circumstances.

Seeking Directions

When seeking directions of any sort, a topic both I and Richard Kerr have touched on in previous editions, Rule 3A offers plenty of support:

  • Any reluctance to give directions on the Court’s part can be dealt with by pointing to Rule 3A(1)(c) and submitting that without directions such certainty cannot be achieved.
  • Further support for the giving of directions generally can be drawn from Rule 3A(14)(b) which requires, at every hearing, the Court set, follow or revise a timetable.
  • Rule 3A(13) which requires the giving of directions if the case is not being concluded at that hearing.
  • Rule 3A(18) expressly requires a record of directions given to be made available.
  • When seeking a direction for statements of case, Rule 3A(1)(a) offers a solid foundation together with Rule 3A(17)(a).
  • When inviting written evidence in chief, Rule 3A(1)(e) provides a clear basis.
  • Where the appearance of legal representatives or witnesses remotely can save time or cost, Rule 3A(1)(h) together with Rule 3B make clear that the Court can and should make use of such technology where it is in the interests of justice.

It is notable that Rule 3A(2) requires the Court to actively manage the case, with Rule 3A(3) requiring the parties themselves not only to assist generally but to positively apply for directions if that is needed to assist with management of the case.

In discharging its Rule 3A(2) obligation, the powers of the Court are contained within Rule 3A(7). The Court is expressly empowered to give directions of its own initiative, including without a hearing. Equally, it can invite parties to propose directions or make them on application. Applications can be by phone, letter or email, making it clear that there are no particular formalities required to have directions fixed. The same applies to changing directions, with the Court having the power to bring forward, list, cancel or extend the length of hearings and to shorten or extend the time for compliance. A further express power to vary or revoke directions is contained in Rule 3A(8).

The flexibility of the Court to give, make, change and vary directions, and in particular the timing of them, is therefore vast. Parties seeking or resisting a particular direction or change are therefore better placed if they focus on the merits of their position, rather than looking for a technical avenue by which to compel the Court to grant or refuse what is being proposed.

Non-Compliance

That does not however permit parties to apply unilaterally to change directions or extend time limits, nor to be excused without good reason for non-compliance.

A party applying for directions must give the other parties as much notice as can be given in the circumstances (Rule 3A(10)(b)) and where seeking to delay or extend, give good reasons for the Court to depart from Rule 3A(1)(f) which requires avoidance of delay and discourages unnecessary hearings.

Where a party fails to comply with a direction and later seeks extension or alternate directions, the Court should be taken to Rule 3A(14)(d). The Court is required, at every hearing, if a direction has not been complied with to find out why, identify who was responsible and take appropriate action. This is, in my view, akin to the relief from sanctions provision in the Civil Procedure Rules. The Court cannot properly proceed without identifying the reasons for the breach and deciding whether they are good reasons. Further, what is an appropriate action as a result of the breach will be dependant on all of the circumstances of the case. There is certainly scope for litigators in the Magistrates’ Courts to seek to import the test in Denton v TH White Ltd [2014] 1 W.L.R. 3926 to try and combat non-compliance based on this provision.

One way to partially pre-determine, particularly in cases where directions are breached without good reason, what the appropriate action as a result of a breach should be is to have the Court specify the consequence at the point of giving directions. Rule 3A(7)(i) permits the Court to do so. An example would be that when fixing the dates for evidence, the Court could direct that no evidence will be permitted at trial if not filed and served in accordance with the directions. In the event of a breach, this would be the starting point with the defaulting party having to persuade the Court to do otherwise.

Prevention is of course better than cure. The Court will look more favourably on a party which, anticipating an inability to comply, applies in advance to vary directions. In any event Rule 3A(15)(d) requires parties to keep the Court and each other informed promptly should anything arise which may affect a hearing date or progress of the case. I’d certainly include a directions timetable not being complied with in the definition of “progress of the case in any other way”.

It needn’t always be adversarial. Rule 3A(11) expressly permits the parties themselves to vary time limits fixed by directions provided it won’t affect a hearing date or progress generally, as long as the Court hasn’t precluded such a variation. If short extensions to directions are sought before a breach, with good reason and with commensurate extensions to subsequent directions that won’t affect a trial date, parties should ordinarily be prepared to agree to such a request.

Non-Attendance

Parties should avoid the pitfall of just pressing on in the absence of any other party, without the Court first expressly considering whether to do so. It leaves the party exposed to an appeal unnecessarily.

Rule 3A(14), together with Sections 55 to 57 of the Magistrates’ Courts Act 1980, prescribe a framework for this consideration. The key for the party in attendance is to be sure that notice was given to the non-attending party and that the Court is aware of this. Further, if any application to adjourn has been made, that should be determined before proceeding to the substance of the complaint.

Summary

The rules relating to civil proceedings before the Magistrates’ Courts when read together offer a flexible and fairly comprehensive framework for the case management and trial of complaints. Clearly, as with their criminal and family counterparts and the Civil Procedure Rules, they leave a great deal of room for manoeuvre but that is to be expected where cases turn on their own facts and the Court will ultimately aim to do justice between the parties.

Directions being fixed at the outset, only being varied where necessary and with good reason, non-compliance being avoided and acting positively to assist the Court in progressing cases is key to smooth progress through litigation without unnecessary cost.

As a footnote, I have not touched on the provisions relating to conduct of trials in Rule 14 of the 1981 Rules or Part II of the 1980 Act. Nor have I touched on the specific provisions of Part III of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 or Part VI of the Council Tax (Administration and Enforcement) Regulations 1992. Regard must be had to each of these, but they are perhaps topics for later editions.

Alex Worthington

Greenhalgh Kerr
Olympic House, Beecham Court,
Smithy Brook Rd,
Wigan WN3 6PR

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+44 (0)333 200 5200

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