This consultation was published in February 2004. It set out the proposals to review the procedures relating to litigation in the civil courts by or against the Crown in England and Wales. The paper does not cover Crown immunity. The Crown includes Secretaries and Ministers of State, Government Departments and Executive Agencies.
The consultation period closed on 3 May 2004. The summarised responses report outlines the conclusions reached on the options.
Consultation Paper
Responses
Contact details
How to download and access files
This consultation closed on 3 May 2004.
This paper sets out for consultation proposals to review the procedures relating to claims in the civil courts by or against the Crown in England and Wales, but not in Scotland. The Crown includes Secretaries and Ministers of State, Government Departments and Executive Agencies. The consultation is aimed at those who wish to make or defend a civil claim against the Crown. This paper does not deal with the issue of Crown immunity. This consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria set out in Annex D has been followed.
An initial impact assessment indicates that businesses and individuals are likely to be particularly affected. The proposals are unlikely to lead to additional costs or savings for businesses, charities or the voluntary sector. A partial Regulatory Impact Assessment is attached at Annex A.
Copies of the consultation paper are being sent amongst others to:
Government Departments and their agencies;
The Law Society;
The Bar Council;
The Judiciary;
The Confederation of British Industries;
The British Chambers of Commerce;
The Small Business Federation;
The Association of British Insurers;
User Groups of the High Court and county courts;
The Advice Services Alliance;
The Equal Opportunities Commission;
Association of Certified Accountants;
The Institute of Chartered Accountants;
Association of Chartered Certified Accountants;
The Commission for Racial Equality;
The Disability Rights Commission;
Age Concern;
Child Poverty Action Group;
Disability Alliance;
Scottish Executive;
National Assembly for Wales;
Association of Personal Injury Lawyers.
Please send your response by 3 May 2004 to:
Pat Reed
Department for Constitutional Affairs
Civil Justice Division
Third Floor Open Plan
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0207 210 0691
Fax: 0207 210 8559
Email: Pat Reed
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from Deirdre Back at the above address or by phoning 020 7210 0693.
Special procedures have always applied where the Crown is the claimant or defendant in the civil courts. The procedures reflect the special position of the Crown in litigation and confer advantages not available to ordinary litigants.
I consider that some of the special procedures can no longer be justified and I propose that they should be revoked, subject to approval by Parliament. Other provisions will remain for sound practical reasons, but these will be streamlined and simplified. The proposals, if adopted, will place the Crown on a more equal footing with those who make claims against the Crown or defend claims made by the Crown. I consider that the proposed changes represent a significant improvement for litigants which are consistent with the aims of the Civil Justice Reforms of unifying and simplifying procedures with the potential for reducing delay and costs.
I would like to thank the Civil Procedure Rule Committee and those members of the Government Legal Service who have given considerable thought to which rules of court should be revoked and which retained in amended form and have worked together to produce the drafts, which are the basis for this consultation exercise.
Lord Falconer of Thoroton
Cases may be brought before the civil courts that involve the Crown. This is not the Monarchy, but for example a Government Department or one of its Executive Agencies.
The Crown Proceedings Act 1947 sets out the special arrangement for cases brought by or against the Crown and provides for rules of court which set out the special procedures to be followed in these cases. The procedures often place the Crown in a privileged position, for example:
Summary judgment cannot be obtained against the Crown;
The Crown can insist on a case being heard in the High Court, and in London;
Except where the court agrees, a judgment cannot be made against the Crown simply because the Crown has not acknowledged service nor provided defence (a default judgment);
A court order must be obtained where disclosure of documents held by the Crown is sought.
The Act and the rules of court have remained unchanged for a considerable period and the Government considers that some of the provisions should no longer be retained and proposes to revoke them. The remaining provisions are currently contained in two sets of rules of court, one for the Supreme Court and one for the county courts. It is proposed to simplify these and to provide for a single set of rules setting out the special arrangements for cases involving the Crown.
The result should be a system of rules that treats the Crown and other parties more equally and be easier to use.
Background:
Proceedings against or by the Crown include cases brought against or by a Government Department or Executive Agency. (The term Crown, in this context, does not include the Monarchy.)
Before 1947 the Crown could be sued for example for recovery of land and breaches of contract, but not for tort. Changes to the Crown's liability were introduced by the Crown Proceedings Act 1947. The main effects of the changes were to enable proceedings to be taken against the Crown in the same circumstances and the same way as between individuals or businesses. It imposed liability on the Crown in tort and made the Crown subject to the ordinary law of indemnity, but with certain restrictions.
The restrictions include:
Summary judgment cannot be obtained against the Crown;
The Crown can insist on a case being heard in the High Court, and in London;
Except where the court agrees, a judgment cannot be made against the Crown simply because the Crown has not acknowledged service nor provided defence (a default judgment);
A court order must be obtained where disclosure of documents held by the Crown is sought;
The general enforcement rules do not apply.
The 1947 Act was supported by rules of court which are contained in the Schedules to the Civil Procedure Rules:
The Act and the rules of court have remained unchanged for a considerable period. However:
In 1999 fundamental changes were introduced to streamline and simplify the civil justice system, to reduce delay and costs, to improve access to justice, and so far as is practicable to place litigants on a more equal footing. Some procedures, including those relating to litigation by or against the Crown, remained unchanged and were to be reviewed once the main element of the Civil Justice Reforms had been implemented. A major factor in deciding to defer a review of 'Crown proceedings' to a later phase was that any substantive change to the procedures would also require changes to the Crown Proceedings Act;
The Civil Procedure Rule Committee (CPRC), (the independent committee which makes the rules of court) has been discussing with a working party of Government lawyers the issues surrounding the special provisions that apply to proceedings by or against the Crown. The Rule Committee has agreed that certain provisions should be revoked and others amended or unified and streamlined.
The remainder of the paper outlines the fundamental changes, which the Government and the Rule Committee propose for proceedings by or against the Crown and invites comments on the proposals. Please note that the consultation does not deal with Crown immunity which is outside its remit.
The proposals are based on the premise that the same rules that apply between individuals and business should apply to the Crown unless some convincing justification can be shown for retaining special procedures. The CPRC has agreed draft rules to inform the debate over the proposed changes. Existing rules are already interpreted in the light of the Human Rights Act 1998 and the Act has been taken into account in drafting the proposed rules. The changes are discussed below and a copy of the draft rules is attached at Annex B. The discussion broadly follows the same order as the existing rules contained in RSC Order 77. Annex C provides a table setting out:
the relevant section of the Crown Proceedings Act;
the current RSC or CCR Rules;
the location of any proposed new or amended Rule; and
the proposed changes.
Some of the changes cannot be achieved without prior amendment to the Crown Proceedings Act and depending on the outcome of consultation any necessary changes will be made to both the Act and the rules. Where a change to the provisions of the Act is proposed this will be specified. No changes will be made to Part 1 of the Act concerning substantive law. A practice direction will support the new rules of court. Proceedings by or against the Crown and the Civil Procedure Rules:
Prior to 1999 there were separate Rules for the Supreme Court and for county courts. Under the Civil Justice Reforms, the vast majority of the rules were streamlined and unified into one set. Parties are expected to comply with the Civil Procedure Rules of court, except where an Act, rule or practice direction specifies otherwise. The rules setting out the special arrangements relating to proceedings involving the Crown were not amalgamated or streamlined in 1999. It is proposed, as part of these changes, to unify, simplify and reduce the number of special provisions. The revised rules will then become part of the main body of the Civil Procedure Rules. The scope of the new rules and the application of the Civil Procedure Rules are set out in the proposed rules 66.1 and 66.2.
The Crown Proceedings Act Sections 15, 19 and 20 currently make provisions relating to jurisdiction and where cases may be heard.
15 (1) Subject to the provisions of this Act, and to any enactment limiting the jurisdiction of county court (whether by reference to the subject matter of the proceedings to be brought or the amount sought to be recovered in the proceedings or otherwise) any civil proceedings against the Crown may be instituted in a county court. (2) Any proceedings by or against the Crown in a county court shall be instituted and proceeded with in accordance with county court rules and not otherwise. |
19 (1) In any case in which civil proceedings against the Crown in the High Court are instituted by the issue of a writ out of a district registry the Crown may enter an appearance either in the district registry or in the central office of the High Court, and if appearance is entered in the central office all steps in relation to the proceedings up to trial shall be taken at the Royal Courts of Justice. (2) The trial of any civil proceedings by or against the Crown in the High Court shall be held at the Royal Courts of Justice unless the Court, with the consent of the Crown, otherwise directs. Where the Crown refuses its consent to a direction under this subsection the Court may take account of the refusal in exercising its powers in regard to the award of costs. (3) Nothing in this section shall prejudice the right of the Crown to demand a local venue for the trial of any proceedings in which the Attorney-General has waived his right to a trial at bar. |
20(1) If in a case where proceedings are instituted against the Crown in a county court an application in that behalf is made by the Crown to the High Court, and there is produced to the Court a certificate of the Attorney-General to the effect that the proceedings may involve an important question of law, or may be decisive of other cases arising out of the same matter, or are for other reasons more fit to be tried in the High Court, the proceedings shall be removed into the High Court. Where any proceedings have been removed into the High Court on the production of such a certificate as aforesaid, and it appears to the Court by whom the proceedings are tried that the removal has occasioned additional expenses to the person by whom the proceedings are brought, the Court may take account of the additional expense so occasioned in exercising its powers in regard to the award of costs. (2) Without prejudice to the rights of the Crown under the preceding provisions of this section, all rules of law and enactments relating to the removal or transfer of proceedings from a county court to the High Court, or the transfer of proceedings from the High Court to a county court, shall apply in relation to proceedings against the Crown. |
The Act enables the Crown to require that a High Court case is to be heard at the Royal Courts of Justice in London, or a county court case transferred to the High Court (1947 Act, section 20, and RSC Order 77 rule 2). This provision can result in claimants or defendants facing long journeys and added expense to attend a hearing. The Act does, however, provide for the court to take into account any additional costs that may be incurred by the other party to the proceedings when determining how costs should be awarded.
It is proposed that, in future, the Crown will no longer have a privilege as to venue. Any application for a transfer, between county courts, between county courts and the High Court or between the High Court District Registries and the Royal Courts of Justice, would be considered in the normal way under Part 30 of the Civil Procedure Rules. In reaching a decision on venue, the Court will take into account the criteria set out in CPR rule 30.3.
Public interest issues may merit a case being tried at the Royal Courts of Justice in London. Government Departments face practical issues of handling a number of cases on the same day with hearings potentially spread throughout England and Wales. Consequently it is proposed to add to the criteria in CPR Rule 30.3 to provide that, the court, when considering venue, must have regard to the location of the relevant government department etc. and, where appropriate, any public interest that the matter should be tried in London. The change places the Crown and the claimant or defendant on a more equal footing as it would be for the court to decide venue and not the Crown. (Proposed amendment to rule 30.3)
| Question 1. Do you agree that the Crown should no longer have the power to decide the venue for a case and that instead this should be a matter for the court to decide? If not please explain why not and who you consider should exercise this power. |
Particulars to be included in the claim form:
Because of the variety and volume of cases brought against the Crown and the large number of offices that some Government Departments have, it is essential that adequate information is provided in the claim to enable the Crown to identify the circumstances in which the claim is made. The Crown Proceedings Act Section 35 (2) provides:
Provision shall be made by rules of court and county court rules with respect to the following matters... (b) for securing that where any civil proceedings are brought against the Crown in accordance with the provisions of this Act the plaintiff shall, before the Crown is required to take any steps in the proceedings, provide the Crown with such information as the Crown may reasonably require as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the departments and officers of the Crown concerned; |
RSC Order 77 rule 3 and CCR Order 42 rule 4 specify the information to be included in the claim form where the claim is against the Crown. In future the general provisions about statements of case (Part 16 of the Civil Procedure Rules) will apply. However, CPR rule 16.2 will be amended to require that the claim form should include the name of the government department and officers of the Crown concerned and brief details of the circumstances in which it is alleged that the liability of the Crown arose. This information should help ensure the efficient management of cases brought against the Crown. For example, it should enable a claim to be served on the appropriate government department and to enable that department to identify the subject and papers relating to that dispute. (Proposed amendment to CPR rule 16.2)
| Question 2. Do you agree that the general provisions on the information to be contained in the claim form should apply, and that CPR rule 16.2 should specify the additional information required where the claim is against the Crown? If not please explain why. |
Service on the Crown:
Section 18 of the Crown Proceedings Act provides:
| All documents required to be served on the Crown for the purpose of or in connection with any civil proceedings by or against the Crown shall, if those proceedings are by or against an authorised Government department, be served on the solicitor, if any, for that department, or the person, if any, acting for the purposes of this Act as solicitor for that department, or if there is no such solicitor and no person so acting, or if the proceedings are brought by or against the Attorney-General, on the Solicitor for the affairs of His Majesty's Treasury. |
The provisions in section 18 of the Act remain essential to ensure that documents reach the appropriate officer of the Crown. The general provisions relating to service are in Part 6 of the CPR. Once the existing rules are revoked it is proposed to amend CPR rule 6.5 to ensure that service on a government department is made appropriately on the solicitor acting for that department. This therefore does not represent a fundamental change to the rules, but simply to where the rule may be found in the CPR. (Proposed amendment to rule 6.5)
For claims against the Crown, RSC Order 77 rule 4(2) and CCR Order 42 rule 7(2) make special provisions concerning personal service of documents on the Crown. Personal service is not required and may present problems, for example about the availability of the relevant solicitor to receive service. It is therefore proposed that personal service on the Crown should not be permitted. (Proposed amendment to rule 6.4)
| Question 3. Do you agree that personal service on the Crown should not be allowed? If not please explain why not.Who may act on behalf of the Crown?: |
It is important for a claimant or defendant to be aware of who will act on behalf of the Crown and in which circumstances. The list referred to in the Act is currently in an annex to the practice direction supporting Part 19. It is proposed that a new Part (Part 66) of the Civil Procedure Rules will deal with proceedings by or against the Crown and the list will be included in the supporting practice direction.
RSC Order 77 rule 12 and CCR Order 42 rule 12 currently specify that the court may direct who may sign a witness statement on behalf of the Crown. These provisions are to be retained. (Proposed rule 66.3)
Counter claims and set-offs:
The Crown Proceedings Act provides at Section 35 (2)(g)
| Provision shall be made by rules of court and county court rules with respect to the following matters
|
These provisions are currently reflected in RSC Order 77 rules 6 and 10 and CCR Order 42 rules 9 and 11. They:
Require the permission of the court before a counterclaim or set-off may be made where, for example the claim or subject matter relates to a different department.
The need for these provisions remains, but the rules are to be unified and streamlined.(Proposed CPR rule 66.4)
In addition, RSC Order 77 rule 8A provides that the Commissioners of the Inland Revenue may only become a party to proceedings if they consent. This provision is transferred to Part 19 of the CPR, which deals with the addition and substitution of parties. (Proposed amendment to CPR rule 19.4).
| Question 4. Do you agree that the rules relating to counter claims and set-offs involving the Crown should be retained? If not please explain why not. |
Summary judgment:
| Provision shall be made by rules of court and county court rules with respect to the following matters... (d) For excepting proceedings brought against the Crown from the operation of any Rule of Court providing for summary judgment without trial, and for enabling any such proceedings to be put in proper cases into any special list which may be kept for trial of short causes in which leave to defend is given under any such rule of Court as aforesaid; |
A provision which allows the Crown to obtain a summary judgment, but denies a similar right to those bringing a case against the Crown is inequitable (RSC Order 77 rule 7 and CCR Order 42 rule 5 (5) refer). It is proposed to revoke the rules and amend the Crown Proceedings Act to permit applications for summary judgment against the Crown. However, because of the volume of litigation issued by and against the Crown, it is proposed that applications for summary judgment against the Crown will not be permitted until after the time for filing a defence has expired (proposed new rule 24.4(1A)).
| Question 5. Do you agree that in future summary judgment against the Crown should be permitted, but only after the time for filing a defence has expired? If not please explain why not. |
Summary applications in revenue matters:
Section 14 enables the Crown to make summary applications in the High Court in revenue matters.
|
The provisions remain necessary for dealing efficiently with a range of revenue matters and are normally appropriate only where a straightforward issue of law or fact are involved (RSC Order 77 rule 8, there is no equivalent county court rule). It is proposed to replace the existing rule with a streamlined provision. (Proposed CPR rule 66.5)
Question 6. Do you agree that the rules relating to summary applications in revenue matters should be retained? If not please explain why not. |
Judgment in default:
The Crown Proceedings Act 1947
provides in Section 35 (2) that
| Provision shall be made by rules of court and county court rules with respect to the following matters... (c) for providing that in the case of proceedings against the Crown the plaintiff shall not enter judgment against the Crown in default of appearance or pleading without the leave of the Court to be obtained on an application of which notice has been given to the Crown. |
Currently the Crown may obtain a default judgment without leave, whereas the other party in the case requires the leave of the Court (RSC Order 77 rule 9 and CCR Order 42 rule 5 (3)). It is proposed to amend the Crown Proceedings Act and revoke the current rules so that the general rules about default judgment apply to both parties.
However, because of the volume of claims against the Crown and the potential difficulties for the Crown in identifying the relevant cause of litigation, where claimants perhaps unknowingly fail to comply with the relevant rules, certain safeguards are proposed. The changes are as follows:
The proposed rules as to service of Crown proceedings are to be clearer and better sign-posted than the former rules.
The claimant is no longer required to make an application for a default judgment against the Crown in accordance with Part 23 of the CPR. (Proposed amendment to rule 12.10 with consequential changes to CPR rule 12.4 and revocation of paragraph 2.3 (5) of the practice direction to Part 12)
Decisions on default judgments against the Crown will be made by a Master (in the High Court) or district judge (in the county courts) who must be satisfied that documents to be served on the Crown have been properly served.
Question 7. Do you agree it should be possible to obtain a default judgment against the Crown? If not please explain why not. |
Question 8. Do you agree that default judgments against the Crown should only be made after a Master or district judge is satisfied that service on the Crown has taken place properly? |
Enforcement and Money due from the Crown:
Sections 25 and 27 of the Act set out the special provisions that relate to enforcement against the Crown.
| 25 (1)Where in any civil proceedings by or against the Crown or in any proceedings on the Crown side of the King's Bench Division, or in connection with any arbitration to which the Crown is a party, any order (including an order for costs) is made by any Court in favour of any person against the Crown or against any Government department or against an officer of the Crown as such, the proper officer of the Court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty one days from the date of the order or, in case the order provides for the payment of costs and the costs required to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of that order: Provided that, if the Court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant. (2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the person for the time being named in the record as the solicitor, or as the person acting as solicitor, for the Crown or for the Government department or officer concerned. (3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the appropriate Government department shall, subject as hereinafter provided, pay to the person entitled or to his solicitor the amount appearing by the certificate to be due to him together with the interest, if any, lawfully due thereon: Provided that the Court by which any such order as aforesaid is made or any Court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such directions to be inserted therein. (4) Save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any Court for enforcing payment by the Crown of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Crown, or any Government department, or any officer of the Crown as such of any such money or costs. |
| 27 1) Where any money is payable by the Crown to some person who, under any order of any Court, is liable to pay any money to any other person, and that other person would, if the money so payable by the Crown were money payable by a subject, be entitled under rules of court to obtain an order for the attachment thereof as a debt due or accruing due, or an order for the appointment of a sequestrator or receiver to receive the money on his behalf, the High Court may, subject to the provisions of this Act and in accordance with rules of court for receiving that money, and directing payment thereof to that other Court, make an order restraining the first-mentioned person from receiving that money and directing payment thereof to that other person, or to the sequestrator or receiver; Provided that no such order shall be made in respect of:-
|
Many of the rules on enforcement are inappropriate when dealing with the Crown, because the Crown can be expected to comply with court orders, and is unlikely not to have the resources to do so. The Crown is therefore excluded from certain enforcement provisions. RSC Order rule 15 and 16 and CCR Order rule 13 specify that, the following rules on enforcement do not apply.
The court's power to appoint a receiver (Part 69);
The general rules on enforcement (Part 70);
Orders to obtain information from debtors (Part 71);
Third party debt orders (Part 72);
Charging Orders, Stop Orders and Stop Notices (Part 73);
Enforcement of judgments and orders: general (RSC Order 45 and CCR Order 25);
Writs of execution: general (RSC Order 46) and warrants of execution, delivery and possession (CCR Order 26);
Writs of Fieri Facias (RSC Order 47);
Committal (RSC Order 52) and Committal for Breach of Order or Undertaking CCR Order 29);
Attachments of earnings (CCR Order 27);
Judgment summonses (CCR Order 28).
It is proposed to unify the provisions and incorporate them into the body of Civil Procedure Rules (Proposed CPR rule 66.6).
| Question 9. Do you agree that the new rules should continue to disapply the rules on enforcement? If not please explain why not. |
Proceedings relating to postal packets:
RSC Order 17 outlines provisions for proceedings relating to postal packets. The requirement that an application is made for permission to bring proceedings regarding a postal packet in the name of the sender, addressee or his personal representative is to be retained. The requirement that such claims should be made under Part 8 and who should receive a copy of the application notice will be made explicit. (Proposed new CPR rule 19.7B and revocation of RSC Order 17 and CCR Order 49 rule 15).
| Question 10. Do you agree that the special provisions relating to postal packets should be retained? If not please explain why not. |
The proposed changes are consistent with the aims of the Civil Justice Reforms of:
placing the Crown on a more equal footing with those who make claims against the Crown or defend claims made by the Crown;
providing unified and streamlined rules of court;
potentially reducing delay and costs.
Other provisions will remain for sound practical reasons.
Questionnaire
We would welcome responses to the following questions set out in this consultation paper:
Question 1 Do you agree that the Crown should no longer have the power to decide the venue for a case and that instead this should be a matter for the court to decide? If not please explain why not and who you consider should exercise this power.
Question 2 Do you agree that the general provisions on the information to be contained in the claim form should apply, and that CPR rule 16.2 should specify the additional information required where the claim is against the Crown? If not please explain why.
Question 3 Do you agree that personal service on the Crown should not be allowed? If not please explain why not.
Question 4 Do you agree that the rules relating to counter claims and set-offs involving the Crown should be retained? If not please explain why not.
Question 5 Do you agree that in future summary judgment against the Crown should be permitted, but only after the time for filing a defence has expired. If not please explain why not.
Question 6 Do you agree that the rules relating to summary applications in revenue matters should be retained? If not please explain why not.
Question 7 Do you agree it should be possible to obtain a default judgment against the Crown? If not please explain why not.
Question 8 Do you agree that default judgments against the Crown should only be made after a Master or district judge is satisfied that service on the Crown has taken place properly?
Question 9 Do you agree that the new rules should continue to disapply the rules on enforcement? If not please explain why not.
Question 10 Do you agree that the special provisions relating to postal packets should be retained? If not please explain why not.
Name:
Organisation:
Address:
Representative groups are asked to give a summary of the people and organisations they represent when they respond. Please send your completed response by 3 May 2004 to:
Pat Reed
Department for Constitutional Affairs
Civil Justice Division
Third Floor Open Plan
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0207 210 0691
Fax: 0207 210 8559
Email: Pat Reed
Annex A - Partial Regulatory Impact Assessment
1. Title of proposal
A review of procedures in the civil courts for cases brought by or against the Crown
2. Purpose and intended effect of measure
Objective
The current procedures reflect the special position of the Crown in litigation and confer on it advantages not available to other litigants. The objective of this proposal is to place the Crown on a more equal footing with those who make claims against the Crown or who defend claims made by the Crown. The changes will be achieved by amending the Crown Proceedings Act 1947 and revoking and amending certain rules of court. At the same time it is proposed to streamline and unify the remaining procedures, incorporating them into the main body of the Civil Procedure Rules. Those bringing claims against the Crown or being sued by the Crown should find the process easier and more straightforward.
Devolution
This change applies to England and Wales only. The Scottish and Welsh Executives are aware of the proposals.
The background
Under the Crown Proceedings Act 1947 special provisions apply where the Crown is the claimant or defendant in the civil courts. The current rules of court are contained in the rules of the Supreme Court Order 77 and County Court Rules Order 42. They make special provisions for the Crown in litigation. Examples of the special arrangements include claims against a company or individual for taxes or excise duties or where a breach of contract is alleged against the Crown.
It is considered that some of the special procedures are no longer justified and it is intended to revoke them. At the same time it is proposed to unify and streamline the rules, integrating them into the Civil Procedure Rules. Other provisions will be retained. The changes to be made are as follows:
The Crown should no longer have the power to decide the venue for a case. This should be a matter for the court to decide.
The general provisions on the information to be contained in the claim form will apply and CPR rule 16.2 will specify the additional information required where the claim is against the Crown so that Government Departments can identify the issue in dispute.
Personal service on the Crown should no longer be allowed for practical reasons.
Summary judgment against the Crown will be permitted, but only after the time for filing a defence has expired.
It will be possible to obtain a default judgment against the Crown after a Master or district judge is satisfied that service on the Crown has taken place properly.
The rules relating to:
counter claims and set-offs involving the Crown;
the Crown's ability to obtain summary applications in revenue matters;
the Crown's exemption from the normal rules on enforcement;
will be retained.
Risk assessment
Failing to limit the privileges currently exercised by the Crown in civil litigation, results in individuals and businesses facing related costs and inconvenience. The proposed changes should reduce number and effect of the special Crown procedures. For example, for the first time an individual or company will be able to seek a summary judgment against the Crown. The changes are unlikely to affect the numbers of claims made by or against the Crown.
Scaling the Issue
The special provisions relating to the Crown may be invoked in any case where the Crown is the claimant or defendant, however, separate data is not held on the number of claims involving the Crown. The nature and extent of the effect of the provisions depends on the circumstances of the cases.
3. Options
Option 1: Do nothing
Option 2: Unify and reduce the number of special procedures relating to civil litigation by or against the Crown.
4. Benefits
Option 1 - Do nothing: This option would retain the existing provisions, minimising change for litigants (and their representatives), the Crown, the judiciary and Court Service.
Option 2 - Unifying and reducing the number of special procedures by or against the Crown: This option should make it easier for litigants who wish to claim against or defend a claim brought by the Crown. For example, by allowing summary judgments to be obtained against the Crown. The proposed change also removes the right of the Crown to specify where a claim will be heard. This should enable more claims to be dealt with locally rather than in the Royal Courts of Justice. Overall there may be some marginal reduction in costs for individuals and businesses because of the simplification of the procedures. The value of the benefits is difficult to quantify and information is invited from consultees as to the probable level of savings. The proposed changes are consistent with the Civil Justice Reforms.
5. Costs
Business sectors affected
Individuals, businesses of all sizes (including their legal representatives, accountants and tax advisors) and Government Departments are likely to be affected by the proposed changes wherever civil litigation involves the Crown. If the proposal to deregulate is adopted then the burdens on these groups should be reduced. Government Departments, and their Executive Agencies, are likely to have to change their procedures and may incur additional travelling costs for attending hearings outside London. The Court Service may need to make some changes, but these are thought to be marginal.
This Department does not currently collect information about the number and cost of Crown proceedings. Consultees, likely to be affected by the proposals, are invited to provide information about the likely implications and costs associated with the proposed changes.
Equity and fairness
Option 1 - Do nothing: those wishing to claim against the Crown or who are a party in a case brought by the Crown would continue to be faced with the special provisions relating to the Crown. For example, the Crown may currently obtain a summary judgment against an individual or business, an option not available to other litigants.
Option 2 - Unifying and reducing the number of special procedures by or against the Crown: Should result in parties being placed on a more equal footing before the courts, increasing equity and fairness. For example, where proceedings involve the Crown either party will be able to obtain a summary judgment.
Compliance
Option 1 - Do nothing: Litigants acting as claimants or defendants against the Crown will continue to face additional costs. For example, because a case may be heard in London or because they cannot resolve a case sooner by obtaining a summary judgment.
Option 2 - Unifying and reducing the number of special procedures by or against the Crown: It is not clear if there will be any new compliance costs incurred by those involved in litigation with the Crown. Consultees are invited to provide information about any compliance costs.
Other costs
The changes represent a transfer of costs from individuals and businesses to Government Departments and their Agencies, which may need to make some changes to procedures and pay additional travelling costs for attendance at hearings outside London.
Costs for a typical business
Because of the extremely wide reach of Government Departments and their agencies, a wide range of businesses will be affected by this de-regulation. The changes should impose no new requirements or costs on business, but consultees are invited to provide information about any new costs that they think are likely to result from the changes.
6. Sensitivity analysis
As indicated above, the available data is extremely limited and consequently the conclusions are vulnerable. However, the proposals are deregulatory and it is not anticipated that they will increase costs for businesses. Consultees are invited to provide information to further improve the assessment of the costs of the proposals.
7. Consultation with small business: the Small Firms' Impact Test
We have consulted the Small Business Service [http://www.sbs.gov.uk].
8. Competition assessment
It is not anticipated that option 2 will have any impact on competition.
9. Enforcement and sanctions
For those who are involved in proceedings with the Crown, there should be no enforcement or sanctions involved, beyond the powers already exercised by the courts. For Government Departments and their Executive Agencies the courts will deal with any failure to comply with the changed arrangements. Government Departments, as consultees, are invited to supply information about the costs of complying with the proposed provisions.
10. Monitoring and review
Some of the proposals will need changes made to primary legislation, which will affect the timing of any review. It is proposed to invite the Confederation of Businesses, the Federation of Small Businesses, the Advice Services Alliance and Government Departments to comment on how the new arrangements are working after the new procedures have had a chance to bed down.
11. Consultation
Within government
Deputy Prime Minister;
Chancellor of the Exchequer;
Home Secretary;
Secretary of State for Environment, Food and Rural Affairs;
Secretary of State for Work and Pensions;
Secretary of State for Health;
Secretary of State for Wales;
Secretary of State for Scotland;
Leader of the House of Lords;
Secretary of State for Trade and Industry;
Secretary of State for Education and Skills;
Secretary of State for Culture, Media and Sport;
Attorney General;
Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster;
Chief Whip;
Minister of Transport;
Minister without Portfolio.
Public consultation
Because the Crown has a wide reach this consultation exercise is intended to be as broad as is practicable and will include.
The Law Society;
The Bar Counsel;
The Judiciary;
The Society of Legal Scholars;
The British Chambers of Commerce;
The Confederation of British Industries;
The Small Business Federation;
The Association of British Insurers;
User Groups of the High Court and county courts;
The Advice Services Alliance;
The Equal Opportunities Commission;
Association of Certified Accountants;
The Institute of Chartered Accountants;
Association of Chartered Certified Accountants;
The Race Relations Commission;
The Disability Discrimination Commission;
Age Concern;
Child Poverty Action Group;
Disability Alliance;
HM Treasury;
Cabinet Office;
Other Government Departments and their agencies,
Scottish Executive;
National Assembly for Wales
Association for Personal Injury Lawyers.
12. Summary and recommendation
The proposal to unify and reduce the number of special procedures by or against the Crown is recommended. This deregulation should place the Crown on a more equal footing with other litigants.
Declaration
I have read the Regulatory Impact Assessment and I am satisfied that the benefits justify the costs.
Signed............................................................ (This remains blank until the legislation is to be sent to Parliament. It then becomes a final RIA.
Date
Minister's name, title,
DEPARTMENT FOR CONSTITUTIONAL AFFAIRS
Contact point
Insert name, address and phone number of an official who can answer any queries on the assessment or proposed legislation.
Annex B - Civil Procedure Rules - Part 66
Annex C - Crown Proceedings - Table of Destinations
Annex D - Consultation Co-ordinator and General Principles of Consultation
If you have any complaints or comments about the consultation process, you should contact the Department for Constitutional Affairs' consultation co-ordinator, Laurence Fiddler, on 020 7210 8516 or email him at Laurence Fiddler. Alternatively, you may wish to write to the address below:
Laurence Fiddler
Consultation Co-ordinator,
Room 8.23
Department for Constitutional Affairs
Selborne House
54-60 Victoria Street
London SW1E 6QW
General principles of consultation
The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office is as follows:
Timing of consultation should be built into the planning process for a policy or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.
It should be clear who is being consulted, about what questions, in what timescale and for what purpose.
A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.
Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals.
Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation.
Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken.
Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.
Civil
proceedings by or against the Crown - a review of Civil Procedures [![pdf [108kb]](../../img/icon_pdf.png){kind=icon}
PDF 108 kb], a post consultation report setting out the responses received
to the consultation exercise and the Government's proposals for taking the
recommendations forward.
Declan Hickey
Civil Law and Justice Division
Department for Constitutional Affairs
Selborne House
54 Victoria Street
London SW1E 6QW,
United Kingdom
Tel: 020 7210 0759
Email Declan Hickey
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