With effect from 6 April 2023, there has been a change in how the civil courts approach questions relating to the participation of children and protected parties in proceedings (nb, this change does not relate to the Court of Protection, nor to the family courts/Family Division of the High Court, which have their own set of Rules and Practice Directions).
CPR Practice Direction 21 has been withdrawn, and CPR Part 21 has been amended to include most, but not all, of the provisions contained in the Practice Direction, as well as a number of relatively minor changes to the rules themselves. This forms part of the rolling process being undertaken by the Civil Procedure Rules Committee (‘CPRC’) to comply with its statutory duty under s.2(7) Civil Procedure Act 1997 to simplify the Rules.
The explanation for the removal of PD21 can be found in the minutes of the October 2022 CRPC meeting, namely that it was considered to be “a mix of (i) repetition, (ii) outmoded or otherwise inappropriate content and (iii) provisions that should be in the rule[s].” This means, in turn, that Part 21 now includes elements which had previously been found in the Practice Direction and is – therefore – longer, although more succinctly expressed.
The CPRC had consulted upon its proposals in the late autumn of 2022. Only one change attracted substantive comment: one respondent raising a concern that the increase to £100,000 in the revised version of CPR r.21.11(9)(a) (control of money recovered for the benefit of a protected beneficiary) would mean that fewer claimants can apply to the Court of Protection for appointment of a Deputy. The minutes of the CPRC meeting of 2 December 2022 contains the explanation from Master Cook of the practical rationale which satisfied the CPRC that the concern was misplaced, thus:
[t]he purpose of this provision was to enable the court to avoid the expense of appointing a Deputy or applying to the Court of Protection where the damages awarded were modest. This sum has been fixed at £50,000 for a considerable period of time. Management by the court (Court Funds Office) is a light touch inexpensive alternative to the Court of Protection route. The increase to £100,000 gives more scope to reduce costs for protected beneficiaries and was seen as leading to fewer applications to the Court of Protection, not more.
I would note that clearing PD21 out of the way is likely to be helpful for an entirely different reason to that which motivated the CRPC. The Civil Justice Council has convened a Working Group (on which I sit) is looking at practice and procedure around determining mental capacity in civil proceedings. Whilst work is still ongoing, one possible outcome is a recommendation will be made as to the need for a Practice Direction to amplify the provisions of Part 21 in such a way as actually to add value, rather than duplicate.