Bovale Ltd v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 01 September 2008 |
| Neutral Citation | [2008] EWHC 2143 (Admin),[2008] EWHC 2538 (Admin) |
| Docket Number | CO/5244/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 September 2008 |
[2008] EWHC 2143 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Collins
CO/5244/2007
Mr Timothy Sheppard (instructed by Messrs Martineau Johnson) appeared on behalf of the Claimant
Mr David Blundell (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
There is before me what is in form an application to set aside an order made by Deputy Master Knapman on 20th August 2008 that the defendant file and serve any evidence and any alternative or additional grounds of resistance to those lodged by the second respondent, who has served an indication of the basis upon which it seeks to resist the claim, by 5th September 2008.
The history is this. The claim is made by a developer under section 288 of the Town and Country Planning Act 1990 seeking to quash a decision by the Secretary of State upholding a refusal of planning permission by the Herefordshire District Council, which is the second respondent in this case.
Claims under section 287 and 288 of the 1990 Act —now I think section 113 of the 2004 Act; there are similar provisions in the new Act which cover exactly the same ground —are to be lodged in this court. They do not require permission and accordingly they are not within Part 54, but fall within Part 8 of the Civil Procedure Rules (“the CPR”), being claims which seek the court's decision on a question which is unlikely to involve a substantial dispute of fact, or falls within paragraph (6) of Rule 8.1 which enables a Practice Direction to be issued requiring or permitting the use of Part 8 procedure for any particular case.
One of those that falls within the Practice Direction in paragraph 22 is an application relating to any decision or order or any action on the part of a Minister of the Crown to which section 288 of the Town and Country Planning Act 1990 applies, but also within paragraph 22.1 is an application relating to a structure plan, local plan or other development plan within the meaning of the Town and Country Planning Act, and that covers the local planning authority. However, there are cases that fall within either section 287 or section 288 in which the Minister is not concerned but the local planning authority is, which do not on the face of them appear to be directly covered by paragraph 22.
A defendant to a Part 8 claim must serve an Acknowledgement of Service not more than 14 days after service of the claim form:
The requirement under Rule 8.5(3) is that:
“A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.”
Thus, under the Rule there appears to be a requirement to file any written evidence within 14 days of service of the claim.
However, the Practice Direction 22.9 provides that:
“The respondent [for some reason the defendant is called the respondent in the practice direction] must –
(1) file any witness statement in opposition to the application in the Administrative Court within 21 days after service on him of the applicant's witness statement; …”
A witness statement should normally accompany the claim form, and has done in this as it would in almost all cases.
Accordingly, there is a general provision that the defendant or respondent shall serve any evidence within 21 days of service of evidence on him or her, which normally would be when the claim form is filed. I say “normally”, because Rule 8.5(1) provides:
“The claimant must file any written evidence on which he intends to rely when he files his claim form.”
I suppose it is possible to envisage circumstances where the claim does not contain any witness statement and merely produces the documentation, although I am bound to say that, as far as I am aware, the normal practice is at the very least to have a formal statement from the solicitor producing the relevant documentary material. I suppose it is possible that no witness statement is served. If no witness statement is served there would I suppose be no apparent obligation on the defendant to serve any evidence in any particular time.
However, the reality is that in the vast majority of cases, and I suspect in all cases, in practice there will be a statement, if only a statement formally producing the relevant documents and so the 21-day time limit is triggered.
The problem has been that in these cases, section 287 and 288, all too often it is not until the last minute, usually when the claim has a hearing date, that the defendant gets round to preparing a defence because if there is no need to file a defence and if, as is often I fear the case, no regard is paid to the obligation to serve evidence, the court is faced with a problem that at the last moment material is put forward, whether by way of detailed defence or evidence or both. That creates problems, not only for the court but also for claimants and other interested parties, and is certainly not an efficient way of managing the court's business.
It was in those circumstances, and as a result of representations made to me by interested parties, that I decided that the time had come to make standard directions in order to attempt to meet this problem and to ensure that evidence and at least an indication of what the real issues were should be given at a reasonably early stage.
I confess that when I dealt with this, as I did in my judgment in Dinedor Hill Action Association v Herefordshire District Council [2008] EWHC 1741 (Admin), I had not had my attention drawn specifically to Part 8 and so I did not have in mind the requirements to serve evidence within a specified short period.
Before setting out in my judgment in that case what I considered to be the appropriate approach, I had a discussion briefly with a representative of the Treasury Solicitor, as is apparent from paragraph 34 of my judgment. I recognise that the Treasury Solicitor in particular, and I imagine local authorities too, must have the opportunity to discuss in the case of the Treasury Solicitor with the inspector in question, in the case of local authorities it may be with the chairman of the planning committee in question or the officer or officers who were responsible for the relevant decision. All that would take a little time. For the Treasury Solicitor, in particular, there is the general pressure of work, but also one has to recognise that inspectors are very busy. They will be dealing with inquiries and frequently not be in London or will be seriously engaged in a particular inquiry, and so there may well be a need for some time in order to enable the matter to be properly discussed. The point has been made, and properly made, that the Treasury Solicitor is concerned to give advice as to whether in his view the claim should be conceded. It is obviously in everyone's interests that that is done at as early a stage as possible, but having been given a reasonable time to enable the necessary information to be obtained.
In theory, no doubt, the position should be that the Treasury Solicitor or the local authority (or whoever is the defendant) when serving an Acknowledgement of Service, should make a specific application for an extension of time for the filing of evidence (if any). However, that seems to me to be a somewhat impractical requirement and also one which is capable of adding to expense, because it may be resisted and in any event it would require a specific consideration. Again, according to the Rules, if there is not service of evidence within the 21 days, the defendant is then precluded by the Rules from relying on any such evidence unless the court otherwise directs.
For private litigation that may be entirely reasonable, but it is something which in public law terms is in my view usually inappropriate. One has to bear in mind the obligation in public law cases to reach the right decision if possible, because of the potential effect that the matter has on others than the immediate parties to it.
It is utterly pointless, and indeed would be contrary to any sort of good administration, for the court to preclude itself from dealing with relevant evidence and then make a decision which is a wrong decision because that would only increase costs and may have a damaging effect upon the public. The difficulty, frankly, is that those responsible for Part 8 and the Practice Direction have failed properly to consider the special needs of the Administrative Court and the parties to claims such as this. I am afraid I am firmly of the view that the Rules and the Practice Direction are inappropriate, and do not satisfactorily deal with the situation in these cases.
So far as the evidence side is concerned, the defendant has indicated, through Mr Blundell, that she is not intending to serve any evidence in this case and so there is in fact no need for the order made by Deputy Master Knapman in that respect. It in fact does not affect her because if she is not proposing to file any evidence, it does not matter that she is directed to do so by 5th September. However, I am entirely satisfied that that part of the order is not needed and accordingly there is no point in maintaining it in being. Mr Sheppard on behalf of the claimant, for obvious reasons, has nothing to say so far as that is concerned.
The other aspect of the order relates to the requirement by the Deputy Master that any alternative or additional...
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