Getting it right first time: The esoterics of general applications under CPR 23

12 Feb 2013

A statement of case (which by CPR 2.3(1) includes “a claim form, particulars of claim where these are not included in the claim form, defence, Pt 20 claim or a reply to a defence”) can, generally speaking and if certain conditions are met, be amended: See CPR 17 and PD17. By contrast and with one notable exception, an application made under CPR 23 cannot.  The exception is an application to commit, which can be amended – but only with the permission of the court.

The exception, found originally in CPR Sch 1, PD RSC Ord 52 (“PD52”), para 2.6(3), has been reproduced in CPR PD 81 para 13.2(2).  Both CPR Sch 1, RSC Ord 52 (“Ord 52”) and CPR Sch 2, CCR Ord 29 were omitted from the CPR with effect from 1 October 2012 by rr18(c) and 19(a) of the Civil Procedure (Amendment No 2) Rules 2012 (SI 2012/2208) (“the Rules”) and replaced, by the Schedule to the Rules, by CPR 81 – subject to certain transitional provisions relating to contempts in the face of the court (r1).  As with the old Ord 52, r6(3), the court may permit an applicant to rely on grounds other than those contained in the application to commit: see CPR 81.28(1)(a). 

Similarly, it is not possible to apply to strike out an application.  The court’s power to strike out is found in CPR 3.4 (2), but is limited to striking out a statement of case, the definition of which (see above) does not include an application.  Again, however, in relation to applications to commit, the court may, either on an application or of its own initiative, strike out a committal application if certain specific criteria are met: see PD CPR 81 para 16.15 which reproduces the old PD52, para 5.

Although the court has a general power under CPR 3.1(2)(m) to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”  it is suggested that the very wording of the power – being concerned only with general case management – and the existence of the specific exceptions such as those referred to above, means that the power is unlikely to enable courts to amend or strike out applications.  Given that applications under CPR 23 are a regular occurrence in civil litgation, practitioners will need to be alive to these points, esoteric though they may be.


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