Date 29 August 2008
Welcome to the August issue of Stay Alert.
In this edition, we bring you up to date on recent developments in Commercial Litigation and cover:
- Overview of the changes to CPR 6
- Admissibility of deleted words
- High Court rules on Max Mosley privacy case against the News of the World
- Responses on proposed reform to personal bankruptcy published
- Review of Case Track Limits
We hope that you find this edition of Stay Alert useful and interesting. We value your opinions and always welcome any comments you may have. If you have any feedback on this edition or any suggestions on what you would like us to cover in future, please email Clare Mackay – clare.mackay@salaw.com. We look forward to hearing from you.
Overview of the changes to CPR 6
The rules governing service will change in October 2008. A new Part 6 (Service of documents) has been published in the Civil Procedure (Amendment) Rules 2008 (SI 2008/2178) which will come into force on 1 October 2008; it replaces the current Part 6 and includes consequential amendments to other rules. As a result, there will be substantial changes to both the domestic regime and the rules on service out of the jurisdiction.
The main changes to CPR 6 will be:
- Structural separation: Complete structural separation between the rules on service of the claim form and the rules on service of other documents
- Saturdays and Sundays will be excluded when determining the date of deemed service: Anderton v Clwyd County Council [2002] EWCA Civ 933 (which can be read about by clicking here) will be overturned to the extent that Saturdays and Sundays (and, in fact, all days other than "business days", as defined in the new rule) will now be excluded when determining the date of deemed service
- Simplified periods for deemed service: The standard periods for deemed service will be simplified, particularly for service of claim forms. The date for deemed service of a claim form will be two business days after despatch by whatever means. The date for deemed service of other documents will be two business days after despatch by post and Document Exchange, or the same business day if served before 4.30pm by hand, personal service, fax or e-mail (or the next business day if served in one of these ways after 4.30pm)
- Electronic means - date of deemed service: The date for deemed service of documents (including a claim form) served by electronic means other than fax will be brought into line with the date of deemed service where service is by fax
- Personal service and serving the claim form on the defendant's solicitor: There will be substantial restructuring. The main point of interest is a new stand-alone rule regarding service of the claim form on the defendant's solicitor
- Enquiries into last known address: Where a claimant has "reason to believe" that the intended defendant is no longer at his default address for service, there will be an express requirement to take reasonable steps to discover the defendant's current address. This is similar to the steps required under existing case law. The rules will go further, however, requiring the claimant to consider whether an alternative address is available for service, before attempting service at the defunct address
- Alternative service: Retrospective orders for alternative service will be allowed; they are not currently permitted. It had initially been proposed that orders for alternative service should only be granted for "compelling" reasons, but the draft rules have been revised to keep the existing test which requires "good" reason to be shown
- Dispensing with service: Orders dispensing with service of the claim form will be granted in "exceptional" circumstances. This goes further than the position under case law where this test would be applied mainly to retrospective applications. Separately, the new rule would permit an application "at any time", that is, in advance of service or retrospectively. This would reflect the current case law
- CPR 7.5 and CPR 7.6: The time limit for serving the claim form will, instead, be a time limit for despatching the claim form
Admissibility of deleted words
The High Court has this month looked at various preliminary questions of contractual construction. While not necessary to decide the issues in Mopani Copper Mines Plc v Millennium Underwriting Ltd, the court considered conflicting authorities on the use of deleted words as an aid to construction of a contract. Although this case dealt with an insurance contract, it is relevant to contracts generally.
The court expressed the view that generally parties should not be allowed to rely on deleted words as evidence of what the true construction of the contract. However the Judge did comment that there should be two exceptions to this rule.
- In a printed form deleted words may resolve the ambiguity of a neighbouring paragraph that remained; and
- The deletion of words in a contractual document may be taken into account, for what (if anything) it was worth, if the fact of deletion showed what the parties agreed they did not agree and there was ambiguity in the words that remained.
This second exception is especially the case in relation to printed forms, or clauses derived from printed forms, but could also be of more general application. The Judge did however sound a note of caution as to the inference to be drawn from the fact that a word had been deleted as the parties may have had all sorts of reasons for the deletion.
The court's comments were obiter and therefore not binding, however the judgment is still a useful review of the conflicting authorities on the use of deleted words to assist with construction of a contract, and an indication that although the House of Lords has ruled that deleted words may not be looked at for any purpose whatever connected with the construction of a contract, lower courts may allow such deletions as evidence in limited circumstances and for limited purposes.
High Court rules on Max Mosley privacy case against the News of the World
The High Court has ruled that the News of the World's publication of an article and a video, in which it alleged that Max Mosley, the head of the FIA, had engaged in sadomasochistic sexual practices, infringed his right to privacy under the European Convention on Human Rights. The court held that Mr Mosley had a reasonable expectation of privacy in relation to sexual activities carried on by consenting adults on private property and it rejected the defendant's claim that the events had a Nazi theme, or that their publication could be justified on the basis that they were illegal or immoral. The court awarded damages of £60,000 but rejected the claim for exemplary damages. This is the highest award of damages for breach of privacy in the English courts and the decision raises important considerations for the media.
However the judge said that there was nothing "landmark" about this decision. It was simply the application to rather unusual facts of recently developed but established principles. He went on to suggest that the case was not likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest was more genuinely engaged. The decision will be of interest and some concern to newspapers. The judge rejected the claim for exemplary damages so it is unlikely that awards in privacy cases will be comparable to those in libel cases. However, journalists and editors will have to consider carefully whether they can meet the public-interest test under Article 10 of the Convention. As the judge said, the jurisprudence of the European Court of Human Rights sets a very high test which the tabloids may have difficulty in meeting.
Responses on proposed reform to personal bankruptcy published
On 21 July 2008, the Insolvency Service published a summary of responses to its consultation, Bankruptcy: proposals for reform of the debtor petition process, published in October 2007. In light of the responses, the Insolvency Service will continue to develop its policy in this area and will publish a further consultation at the beginning of 2009.
The Insolvency Service already intends to remove the requirement to swear an affidavit in insolvency proceedings. Affidavits will be replaced with statements of truth. The changes will be implemented by a legislative reform order as part of the project to modernise and consolidate secondary insolvency legislation.
Review of Case Track Limits
The government has published its response to the consultation paper Case track limits and the claims process for personal injury claims. The response can be read by clicking here. The government promises to set up a new claims process applying to road traffic accident personal injury claims which make up about 75% of all personal injury claims. A new streamlined procedure will provide for early notification of claims valued between £1,000 and £10,000, promote early admissions of liability and introduce fixed time periods and fixed recoverable costs. The process will not apply to clinical negligence claims nor to employers’ liability or public liability claims.
The government has also concluded that there should be no change to the general small claims limit of £5,000 and the limit of £1,000 for personal injury and housing disrepair claims. It has however accepted the recommendation of most respondents to the consultation that the fast track limit should be increased from £15,000 to £25,000. With regard to intellectual property claims, the response states that the government is going to consult the judiciary over whether all IP claims need to be allocated to the multi-track.
For further advice or guidance, please contact Clare Mackay on 01727 798034 or by email at clare.mackay@salaw.com.
© SA Law 2008
Every care is taken in the preparation of our articles. However, no responsibility is accepted as being owed to any person or organisation who acts on the basis of information contained in them. You should obtain specific advice in respect of individual cases.