House of Lords - Explanatory Note
Courts Bill [HL] - continued          House of Lords

back to previous text

Clause 73: Power to change certain requirements relating to Committee:

212.     This clause enables the Lord Chancellor to alter the composition of the FPRC by order after consultation with the President of the Family Division. For example, if it were necessary to add a second Circuit Judge to the FPRC or if it became unnecessary to have two Supreme Court Judges as members of the committee, the Lord Chancellor can do so by amending this section thereby reformulating the composition of the committee.

     Clause 74: Process for making Family Procedure Rules

213.     This clause describes the process for making Family Procedure Rules. Before making rules the FPRC must meet (unless inconvenient) and consult the appropriate persons. This allows the FPRC to call on the expertise of practitioners, judges, academics or any other experts who are not part of the committee to inform discussion about any proposed rule changes. Any rules drafted by the FPRC must be signed by the majority of the committee before being submitted to the Lord Chancellor who may allow, disallow or alter the rules put to him by the FPRC. Where the Lord Chancellor is to alter rules he must consult with the FPRC before doing so. The Lord Chancellor will have the same power to alter rules put to him by the Criminal and Civil Procedure Rule Committees. Rules allowed by the Lord Chancellor are to come into force on such a date as he decides and are to be contained in a Statutory Instrument. This Statutory Instrument is to be subject to the negative resolution procedure in Parliament.

Clause 75: Power to amend legislation in connection with the rules

214.     This clause makes the same provisions as section 4 of the Civil Procedure Act 1997. It provides the Lord Chancellor with an order making power to modify primary legislation and secondary legislation in anticipation of Family Procedure Rules, or as a consequence of these rules or the provisions in clauses 68,69 or 72. It is anticipated that this will be used to make minor revisions to legislation in order, for example, to regularise and modernise terminology to match that in new rules.

Clause 76: Practice directions relating to family proceedings

215.     This clause allows the President of the Family Division with the concurrence of the Lord Chancellor to issue practice directions which are binding on the county courts and magistrates' courts in relation to family proceedings. The President of the Family Division and the Lord Chancellor may also approve another person making practice directions for family proceedings in the county courts and magistrates' courts. In the county courts family jurisdiction, the President currently issues Practice Directions with the concurrence of the Lord Chancellor by virtue of s74A(2) of the CCA 1984. No statutory provision deals with the applicability of such directions to magistrates' courts.

216.     Subsection (3) clarifies the scope of the power. For example, a practice direction could specify what practice and procedure should be followed in a certain care centre (specific court), how care proceedings should be handled in all courts (specific proceedings), or how all magistrates' courts should handle a particular type of case (specific jurisdiction).

Civil Procedure Rules

Clause 77: Civil Procedure Rules

217.     This clause amends the Civil Procedure Act 1997 (CPA 1997) to ensure that if the Lord Chancellor alters draft Civil Procedure Rules he observes the general objectives of fairness and simplicity.

Clause 78: Civil Procedure Rule Committee

218.     This clause reflects the fact that statutory backing has been given to the posts of Head and Deputy Head of Civil Justice under clause 56. These two posts will be ex officio members of the Civil Procedure Rule Committee (Civil PRC) and the post of Vice-Chancellor is to be removed as an ex officio member of the Committee. The changes also reflect the changes to the lay membership.

Clause 79: Power to change certain requirements relating to Committee

219.     This clause allows the Lord Chancellor to amend the composition of the Committee after consultation with the Head and Deputy Head of Civil Justice and the Master of the Rolls. This power to amend the composition of the Committee is to extend only to the class of appointed members. The Committee retains its existing power to co-opt those with specialist expertise in the formulation of particular rules. Such co-optees are not members of the Committee.

Clause 80: Process for making Civil Procedure Rules

220.     The Civil Procedure Rules (CPR), created under the CPA 1997, govern the practice and procedure of the civil division of the Court of Appeal, the High Court and the county courts.

221.     This clause makes minor amendments to the CPA 1997 by providing for the Lord Chancellor to allow, disallow or alter rules made by the Committee. Before altering rules the Lord Chancellor must consult the committee.

PART 8: MISCELLANEOUS

SUMMARY

222.     This part contains provisions relating to criminal and civil procedure, appeals, court fees, periodical payment for personal injury and minor amendments to judicial posts in England, Wales and Northern Ireland.

BACKGROUND

Provisions relating to criminal procedure and appeals

Appeals to Court of Appeal: procedural directions

223.     This clause inserts a new section into the Criminal Appeal Act 1968 (CAA 1968) by extending the powers of a single judge in the Court of Appeal Criminal Division prior to determination by the full court of an appeal or application for leave to appeal. The new section, section 31ZA, will enable a single judge to give procedural directions that need not trouble the full court, thus reducing delay. Either the appellant, or under specified circumstances, the prosecution, may apply to the full court to review such a direction.

224.     In the Court of Appeal Criminal Division, single judges consider applications for leave to appeal and act as a 'filter' by carrying out certain specified functions of the full Court of Appeal. Section 31 of the CAA 1968, lists the powers of the Court of Appeal which may be exercised by a single judge. However, the inability of the single judge to make a broader range of procedural directions for the conduct and progress of an appeal can lead to delay and unnecessary complication.

225.     The Auld Review recommended that a judge of the Court of Appeal should be empowered, when considering applications for leave to appeal, to give procedural directions for the hearing of the application or of the appeal that need not trouble the full court, subject to a right on the part of the applicant or the prosecution, as the case may be, to renew the application to the full court.

Prosecution appeals from Court of Appeal

226.     The Bill amends section 34 of the CAA 1968 by extending the time in which an application by the prosecution for leave to appeal from a decision of the Court of Appeal Criminal Division can be made. It also makes clear that time begins to run against either the prosecution or the defendant from the date of the Court of Appeal's reasoned judgment, rather than from the date of the Court's decision. Amending section 34 requires minor changes being made to sections 36 and 37 of the 1968 Act.

227.     The Auld Review recommended that section 34(2) of the CAA 1968 should be amended to empower the House of Lords and Court of Appeal, as the case may be, to extend the time within which a prosecutor may apply for leave to appeal, as it does in the case of a defendant.

228.     There is a disparity between a defendant and a prosecutor as to the operation of the time limits within which each may petition the House of Lords for leave to appeal where the Court of Appeal, having certified a point of law of general public importance, has refused leave. Both have 14 days from the decision of the Court of Appeal to apply to it for leave and, if leave is refused by the Court, a further 14 days from the date of refusal to petition the House of Lords. Whilst the House or the Court have power at any time to extend a defendant's time for application for leave, neither has power to do so if the prosecutor wishes leave but fails to apply within time. The Bill will give the prosecution an extra 14 days, but it was not considered appropriate to accept the recommendation that the prosecution should be able to apply for an extension of time - this would leave a defendant with the indefinite possibility of the original conviction being restored by the House of Lords

Retirement age of the Registrar of Criminal Appeals

229.     This clause brings the retirement age of the Registrar of Criminal Appeals (RCA) into line with that for other judicial office holders (i.e. a normal compulsory retirement age of 70 for those appointed after the implementation of the Judicial Pensions and Retirement Act 1993 (JPRA 1993) in March 1995). Currently the RCA must retire at the age of 62. This is not only out of line with the retirement age for judicial office-holders generally but also inconsistent with the terms of the judicial pension scheme under which benefits are normally only payable at the age of 65.

Fees, costs and fines

     Fees

230.     The Bill will provide a single unified power for the Lord Chancellor to set the level of fees in the Supreme Court, county courts and magistrates' courts, where another power does not take precedence. This power is subject to the consent of Treasury and it replaces the previous separate powers for each tier provided under section 130 of the SCA 1981, section 128 of the CCA 1984 and section 137 of the MCA 1980. It also incorporates and replaces the separate power in relation to family proceedings in the Matrimonial and Family Proceedings Act 1984, section 41. It will also allow the Lord Chancellor to set different fees and different levels of fees for different tiers of court and for different types of business and to provide for exemptions, reductions and remissions of fees. It is anticipated that separate fees orders will be made for civil proceedings and family proceedings.

231.     In common with the convention adopted by both Houses of Parliament in respect of Fees Orders issued under the current separate powers, any Fees Orders made under the new unified fee setting power will be laid before Parliament and will not be subject to affirmative or negative resolution. However, any Fees Orders made under this new power will require prior consultation with the relevant Heads of Division, the Head and Deputy Head of Civil Justice and, for civil business only, the Civil Justice Council.

232.     The Bill also provides for the Lord Chancellor to take reasonable steps to inform persons of the fees they are likely to pay and will enable the recovery of defaulted fees as a civil debt.

Award of costs against third parties

233.     The Bill provides for criminal courts to have power to order third parties to pay costs incurred by parties to a criminal case as a result of the third party's serious misconduct.

234.     Costs in criminal cases are governed by Part II of the Prosecution of Offences Act 1985 (POA 1985). This provides for certain costs in criminal proceedings, in particular the costs of acquitted defendants, to be paid out of 'central funds' (that is public money). This, taken with the fact that most prosecutions are brought by the State and most defendants are legally aided, means that the legal costs of criminal proceedings are mostly met by the taxpayer

235.     Section 19 of the 1985 Act provides for the Lord Chancellor to make regulations which empower the court to order one party to pay the costs incurred by the other as a result of the first party's unnecessary or improper act or omission. Section 19A of the Act provides for the court to make wasted costs orders against legal representatives in criminal proceedings. Regulations provide for costs paid out of central funds or by the Criminal Defence Service to be recouped when an order is made under either of these sections.

236. The POA 1985 does not currently allow for the court to order third parties to pay costs. Where costs are wasted or incurred as a result of a third party's action these would fall to be paid by the parties to the case or, more likely, the taxpayer. In a recent case, a newspaper published an article that caused the abandonment of a trial, leading to wasted costs, mostly payable by the taxpayer, of some £1m.

237.     A power for courts to order third parties to pay costs is not novel. A broader power already exists in the civil courts. However, the power introduced by the Bill will be limited to instances of serious misconduct by a third party.

Damages

     238.     These Clauses aim to promote the widespread use of periodical payments as the means of paying compensation for future financial loss in personal injury cases. In principle, periodical payments made as the needs arise provide a more appropriate means of compensating claimants than lump sums. The Clauses amend provisions in the Damages Act 1996 relating to periodical payments and structured settlements (which are periodical payments funded by an annuity). At present, the court can only order that an award of damages for personal injury be made by way of periodical payments where both parties consent, and otherwise will order payment by way of a lump sum.

239.     The Bill enables courts in England, Wales and Northern Ireland to order periodical payments for future loss and care costs without the consent of the parties. It also gives the Lord Chancellor a power to enable an award or agreement for periodical payments to be varied under specified circumstances, and prevents the assignment of the right to receive payments unless the court is satisfied that there are special circumstances which make this necessary.

240.     Provision is made to extend the statutory protection given to structured settlements under the 1996 Act, and ensure that the continuity of periodical payments is fully protected where the payments are self-funded by an insurer or Government Department or funded by an annuity. These provisions will apply to the whole of the United Kingdom.

241.     These clauses implement proposals set out in Damages for future loss: Giving the courts the power to order periodical payments in personal injury cases, a Consultation Paper published by the Lord Chancellor's Department on 13th March 2002. The post-consultation report was published on 7 November 2002. These documents have been placed in the Libraries of both Houses and can be accessed on the Department's website, www.lcd.gov.uk.

Provisions relating to Northern Ireland

242.     These clauses make specific provision in respect of certain office holders in Northern Ireland. The Bill will allow for modernisation of judicial titles in order to change a presumption of male gender and to aid court users' understanding of the functions carried out by the post holders. It will also make changes to the future status of the Official Solicitor of the Supreme Court of Northern Ireland so that the office is no longer included with other judicial type posts (statutory officer posts). Instead it will be made the subject of separate and specific provisions governing such matters as appointment and remuneration. The change will not however affect the existing postholder.

COMMENTARY

Provisions relating to criminal procedure and appeals

Clause 81: Alteration of place fixed for Crown Court trial

243.     This clause provides that an application for variation of the place fixed for Crown Court trial no longer needs to be heard in an open court.

Clause 82: Appeals to Court of Appeal: Procedural directions

244.     Clause 82 extends the powers of a single judge in the Court of Appeal Criminal Division when making procedural directions that need not bother the full court. It amends section 31 of the CAA 1968 by allowing a single judge to make orders under section 23(1)(a) of the CAA 1968. This will allow him to order the production of any document, exhibit or anything else connected with the appeal proceedings which he considers to be necessary for the determination of the case.

245.     This clause inserts a new section in to the CAA 1968. This new section, Section 31ZA, further extends the specific powers of a single judge in the Court of Appeal Criminal Division as detailed in s.31 of the CAA 1968, by allowing him to make further binding procedural directions in a wider range of circumstances than at present.

246.     Sections 31ZA (5) and (6) allow for the decision of the single judge, upon application by either the appellant or the prosecution to be reviewed by the full appeal court.

Clause 83: Prosecution Appeals from Court of Appeal

247.     Clause 83 makes several small amendments to the CAA 1968 which extend the time within which the prosecution may make an application for leave to appeal to the House of Lords to 28 days.

Clause 84: Retirement of Registrar of Criminal Appeals

248.     This clause brings the retirement age of the Registrar of Criminal Appeals (RCA) into line with that for other judicial office holders (i.e. a normal compulsory retirement age of 70 for those appointed after the implementation of the JPRA 1993 in March 1995). Currently, by virtue of section 92 (2D) and (2E) of the SCA 1981, the RCA must retire at the age of 62. This is not only out of line with the retirement age for judicial office-holders generally but also inconsistent with the terms of the judicial pension scheme under which benefits are normally only payable at age 65.

Clause 85: Appeals to Courts-Martial Appeal Court: procedural directions

249.     Clause 85 extends the powers of a single judge in the Courts-Martial Court of Appeal when making procedural directions that need not bother the full court. Firstly, it amends section 36 of the Courts-Martial (Appeals) Act 1968 (CMAA 1968) by allowing a single judge to make orders under section 28(1)(a) of the CMAA 1968. This will allow him to order the production of any document, exhibit or anything else connected with the appeal proceedings which he considers to be necessary for the determination of the case.

250.     Secondly, the clause also inserts a new section in to the CMAA 1968. This new section, Section 36ZA, further extends the specific powers of a single judge in the Courts- Martial Court of Appeal as detailed in s.36 of the CMAA 1968 by allowing him to make further binding procedural directions in a wider range of circumstances than at present.

251.     Sections 36ZA (5) and (6) allow for the decision of the single judge, upon application by either the accused or the Defence Council to be reviewed by the full appeal court. This is to maintain consistency with the procedure in the Court of Appeal (clause 82).

Clause 86: Defence Council appeals from Courts-Martial appeal Court

252.     Clause 86 makes several small amendments to the Courts-Martial (Appeals) Act 1968 which extend the time within which the Defence Council may make an application for leave to appeal to the House of Lords to 28 days. This is to maintain consistency with appeals from the Court of Appeal (clause 83).

Fees, costs and fines

Clause 87: Fees

253.     The Lord Chancellor is provided with a single power, with Treasury consent, to prescribe the fees payable in the Supreme Court, county courts and magistrates' courts. He may set different scales or rates of fees and may provide for exemptions, reductions or remissions of fees. The Lord Chancellor will consult the most senior judiciary in relation to any proposed fees order, as well as the Civil Justice Council for civil proceedings only. The Lord Chancellor is placed under a duty to provide appropriate information on fees to those who might have to pay them. It is intended to use a variety of methods of displaying and disseminating this information. In cases of default, fees in the Supreme Court, county courts and magistrates' courts (except fees in family proceedings) may be recovered summarily as a civil debt by the court.

Clause 88: Award of costs against third parties

254.     Clause 86 amends the POA 1985 to provide for magistrates' courts, the Crown Court and the Court of Appeal to have power to order a third party to pay the costs of parties to criminal proceedings that are wasted or incurred as a result of the third party's serious misconduct when the judge thinks it appropriate that the third party should pay the costs.

255.      Regulations will be able to specify the types of misconduct that should not lead to a costs order. An example might be where the misconduct (for example, a witness failing to turn up at court) was the result of fear and intimidation. Regulations can also provide for an order to be made at any time. The third party's conduct, and its effect on the costs in the case, may only come to light after the proceedings have ended. This provision would enable costs to be ordered against a third party where, for example, a verdict is set aside on later discovery that jurors were intimidated. The sub-sections also provide that regulations can ensure that the court can take account of other costs orders that have been, or will be, made in the case.

256.     It is intended that regulations will also provide for a third party to have an opportunity to be heard by the court before it makes an order. Third parties ordered to pay costs by a magistrates' court or the Crown Court will have a right of appeal to a higher court. This mirrors the provisions for appeal against wasted costs orders under S.19A.

Clause 89: Fixing fines: failure to furnish statement of financial circumstances

257.     Clause 89 amends section 128 of the Powers of Criminal Courts (Sentencing) Act 2000. Section 128 obliges a court, following conviction but before fixing the amount of any fine to be imposed on an individual, to take into account both the financial circumstances of the offender and the seriousness of the offence. Subsection (5) sets out the circumstances under which, if the court considers it has insufficient information to make a proper determination of the financial circumstances of the offender, it may make such determination as it thinks fit.

258.     Clause 89 amends section 128(5) so that where an official request has been made for financial information and a defendant has attended court without that information, if he is sentenced to a financial penalty, an inference can be drawn as to his means. "Official request" is defined in s20A of the Criminal Justice Act 1991 as a request which is made by the court for the offender to inform the court, in the event of conviction, of his financial circumstances for the purpose of determining the amount of any fine the court may impose.

259.     The intention is to ensure that the onus is on the defendant to provide information about his income and expenditure to the court, on request, before the court considers the case. If he fails to respond to an official request the court will be entitled to make assumptions about his ability to pay and fine accordingly. The provision is aimed at providing an incentive for the offender to co-operate so the court will be able to set any fine at an appropriate level (making it more likely that it will be paid).

     Register of judgments etc. and execution of writs

Clause 90: Register of judgments and orders etc.

260.     A new register is set up by this provision to replace the county court register made under sections 73 and 73A of the CCA 1984. The new register expands the scope of the previous register, which was only concerned with county court judgments and orders. The new register is designed to incorporate judgments of the High Court and criminal court fines. This will bring defaults from all the civil and criminal courts under one register. In the case of civil proceedings all judgments and orders will be registered unless an exception applies. In the criminal courts only certain cases, decided on an individual basis, will be registered. The provision allows for the register to be kept in house or contracted out.

Clause 91: High Court writs of execution

261.     This clause will relieve High Sheriffs (being unpaid volunteers, appointed annually) of their legal obligations in connection with the enforcement of High Court judgments. The existing competence and probity of those actively engaged in High Court enforcement, currently in the names of the Sheriffs will be maintained.

262.     The High Court will continue to issue writs of execution - that is, in summary, writs for the enforcement of judgment debts, and writs to enforce judgments for the possession of land. England and Wales will be divided into enforcement districts defined by the Lord Chancellor. There will be a number of individuals authorised as High Court enforcement officers, either by the Lord Chancellor or by someone acting on his behalf. The Lord Chancellor (or his delegate) will assign at least one authorised enforcement officer to every district.

263.     The existing jurisdiction of the High Court in relation to writs of execution will not be removed. But these provisions will give the High Court a new, efficient and adaptable tool to enforce its judgments.

Schedule 5: High Court writs of execution

264.     Schedule 5 gives High Court enforcement officers the same obligations and powers that Sheriffs have under common law. The Lord Chancellor or his delegate must approve arrangements for the allocation of a writ where more than one enforcement officer could be obliged to execute it. In practice, those arrangements are likely to be based closely on the existing administrative arrangements under which writs directed to Sheriffs can be delivered to a single address in central London from which they are distributed. The constable's duty to assist an enforcement officer, adopts and brings up to date the comparable provision that applies to sheriffs under section 8 of the Sheriffs Act 1887 (SA 1887). Paragraphs 6 to 11 make the same provision, with the amendments needed to include enforcement officers, sections 138, 138A and 138B of the SCA 1981, which the Bill will omit. The Bill will, by consequential amendments under Schedule 6, make it a criminal offence to obstruct a High Court enforcement officer who is executing a writ.

 
previous Section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries index

© Parliamentary copyright 2002
Prepared: 29 November 2002