Amy Kelly analyses the new CPR Part 81 rules

Published on 09/10/2020

Blog 09.10.20

We consider whether the new CPR Part 81 removed the power of County Court District Judges to hear committal applications for breach of anti-social behaviour injunctions under the Anti-social behaviour Crime and Policing Act 2014?

This week, as if we did not have enough to contend with given all the changes to possession claims, Chambers’ barristers have been experiencing difficulties with Count Court District Judges hearing committals since the new CPR 81 (with new committal application form) came into effect on 1st October 2020. Whether this is a localised Western Circuit issue or more widespread is unknown but at least two local District Judges (and possibly their respective DCJs) have interpreted the new CPR Pt81 as stripping them of the ability to hear committals by way of application.

Amy Kelly, barrister and Head of Housing, has analysed the situation and her preliminary reading of the new CPR Part 81 rules are is as follows:

CPR Pt 81.3 does say that committal proceedings in the County Court will be dealt with by Circuit Judges. CPR PT 81.3 (2) “If the application is made in the High Court, it shall be determined by a High Court judge of the Division in which the case is proceeding. If it is made in the county court, it shall be determined by a Circuit Judge sitting in the county court

However – CPR Pt 81.1 (2) states “This Part does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law.”

The March 2020 Consultation paper (attached) on these exact changes also states as follows:

We have not formed a view on whether persons who are not full time salaried High Court judges but sit as judges or deputy judges of the High Court should sit in contempt proceedings. The issue could be dealt with in rules of court elsewhere in the CPR (e.g.rule 2.4 and Practice Direction 2B). The views of the senior judiciary will be important in relation to this issue.

 Another policy decision not addressed here is whether or to what extent district judges and/or Masters should be empowered to determine contempt proceedings and punish contemnors. We have not formed a view on whether the present position should change. District judges currently deal with some contempt issues, e.g. anti-social behaviour orders (see PD 2B, para 8.1 and 8.3; cf. CPR r.2.4).

If the prevailing view is that the power of district judges in the county court and Masters in the High Court to deal with contempt proceedings should not be expanded beyond its present confines, that is reflected in the draft rule 81.3(2), as set out above. If not, paragraph (2) will need to be adapted.”

[my emphasis]

This suggests that notwithstanding the wording of Pt 81.3, if there is a pre-existing jurisdiction outside of Part 81, it prevails as per CPR Pt 81.1 (2).

So then we look to CPR Practice Direction 2B 8.1 and 8.3 – on allocation of work to the judiciary which has not been amended and allows DJs to deal with ASBCP Act injunctions and committals there under.

PD2B 8.1 Applications for orders and interim injunctions which may not be made or granted by a District Judge in the High Court may not be allocated to a District Judge in the County Court. In the first instance, the following applications for orders and interim remedies(including injunctions whether interim or final) will be allocated to a District Judge…

(v)Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014.

PD2B 8.3 Any proceedings in which the court may make an order committing a person to prison or attach a power of arrest to an injunction or remand a person will be allocated to a Circuit Judge, unless the order, power of arrest or remand is made—

(a)In proceedings which have been or may be allocated to a District Judge pursuant to paragraph 8.1 above

Our tentative preliminary observations are that the jurisdiction for District Judges to hear committals probably has not been changed by the CPR 81.3 (2) because we need to read it in the context of CPR 81.1 (2) and the intention of the Civil Procedure Rule Committee in their consultation, provided of course one accepts that the jurisdictional powers of DJs as set out in the as yet unamended PD2B fall within the definition of being “inherent, statutory or at common law”

Sadly it is clear that there is already significant confusion and concern amongst the Judiciary (and quite frankly practitioners too) with many adopting a cautious ‘I cannot hear this’ approach.

Perhaps the issue may be cleared up with some further judicial guidance telling us how to read the new CPR 81 , or an amended to Part 81.3 (2) explaining it is subject to part 81.1 (2) and PD2B, if that is the case? Watch this space…