It is important for litigators to be aware of procedural flaws in the Damages Claims Portal (‘DCP’) which is likely to lead to unintentional dismissals of claims.
There can be a time when an application is made by either side whilst the claim is within the DCP. However, it is usually applications such as permission to extend the time for service of the claim form under CPR 7.6 that causes issues for Claimants.
Applications during the DCP
There has been a slight update to the DCP rules found in PD 51ZB (and this means that practitioners for both Claimants and Defendants ought to continuously check for updates). Certain applications can be issued on the DCP:-
SECTION 7A – APPLICATIONS FOR COURT ORDERS
Applications for court orders – online applications
7A.1
(1) This paragraph applies where a party wishes to make an application and all the parties are represented.
(2) Subject to subparagraph (10), a party wishing to make an application must use the DCP to make that application (“online application”).
(3) The applicant makes an online application using the DCP by—
(a) completing the relevant screens on the DCP; and
(b) submitting the online application to the court using the DCP.
(4) An online application is to be treated as the application notice for the purposes of the CPR and in particular Part 23.
(5) Unless the online application is made without notice under CPR rule 23.4, the respondent is to be notified, through the DCP, of the application as soon as it is made.
(6) If the applicant requests that the online application is made without notice to the respondent, the application is to be referred to a judge to consider the request.
(7) After an online application has been made and unless the application is to be dealt with without notice, the respondent must provide initial information to assist with managing the future conduct of the application (“respondent information”) by –
(a) completing the relevant screens on the DCP;
(b) submitting the completed screens to the court using the DCP; and
(c) if relevant and requested to do so by the court, confirming whether the respondent consents to the application.
(8) If the respondent confirms that they had consented to the application and that their consent was given before the application was made, the application is to be treated as an application for a consent order and the requirements in rule 40.6(7)(c) and PD 40B paragraph 3.4(3) are disapplied.
(9) The respondent must provide their respondent information –
(a) before 4pm on the 5th day after the date of notification of the online application; or
(b) within such other time limit notified to the respondent at the same time that the respondent is notified of the online application as directed by the Designated Civil Judge Online.
(10) The following applications must be made as on-paper applications–
(a) any application made before a claim has been issued;
(b) any application for default judgment under paragraph 6.6(4)(b) where there is a Mental Health Crisis Moratorium in place under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020;
(c) any application relating to—
(i) an appeal;
(ii) enforcement; or
(iii) insolvency;
(d) any application where any respondent is not already a party to the claim.
Other applications
7A.2
(1) If a party wishes to make an application that is not an online application or otherwise covered by a provision of this practice direction, the application must be made using the procedure set out in the rest of the Civil Procedure Rules.
(2) Any application made under subparagraph (1) is to be made to the CNBC or, where the parties have received an order from a judge at a County Court hearing centre, or have been informed that the claim is to be managed at a County Court hearing centre, that hearing centre.
(3) If an application is made and unless sub-paragraph (4) applies, the claim is to be referred to a judge for directions, which may include that the claim is to be transferred out of the DCP.
(4) If the application made is an application for default judgment under paragraph 6.6(4)(b) where there is a Mental Health Crisis Moratorium in place under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020, the claim must be transferred out of the DCP.
This means that unless you are going to make an application that fits within the list of applications found in PD51ZB para 7A.1(10), you will need to send your application to the Civil National Business Centre (‘CNBC’).
Unintended consequence
The issue is that the DCP will automatically dismiss the claim if the Defendant is not notified of the claim (the DCP version of severing the claim form). This is problematic if the Claimant has made an application.
Such an automated response doesn’t happen when the Claim Form is issued at the Civil National Business Centre. The application is made and if it were to be refused it would mean the claim would expire. However, it meant there was an actual determination before that occurred (because as long as the application was made before the expiration of the deadline, it was treated as being made in time, even if the determination occurred after the expiration).
The DCP automatically dismisses the claim, which causes concern because Claimant lawyers feel like they must do something (such as a subsequent application) to remedy the issue. That increases time, cost and resource expenditure for the parties and the Court.
It is therefore vital that if an application needs to be made to extend the time, that you preemptively accept that the claim will be automatically dismissed. It may be prudent to address this in the application because it is inevitable and there is little point trying to address it later. It will happen so do not be surpised.
Information
Alec Hancock is a CILEX Advocate and Litigator in Civil Proceedings. CILEX Regulation is his regulator. He can appear in open Court in all County Court matters save for family proceedings.
Alec Hancock conducts his advocacy through AJH Advocacy Limited. The Bar Standards Board is the regulator. Alec will attend any Court in England and Wales. He does not charge extra for:-
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