Bovale Ltd v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton |
| Judgment Date | 11 March 2009 |
| Neutral Citation | [2009] EWCA Civ 171 |
| Docket Number | Case No: C1/2008/2299 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 2009 |
[2009] EWCA Civ 171
Before: Lord Justice Waller
Vice-president Of The Court Of Appeal, Civil Division
Lord Justice Dyson
and
Lord Justice Stanley Burnton
Case No: C1/2008/2299
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
James Maurici (instructed by Treasury Solicitors) for the Appellant
Gordon Nardell, Advocate to the Court (instructed by Treasury Solicitors)
Hearing date : 21 st January 2009
Lord Justice Waller and Lord Justice Dyson :
Introduction
This is an appeal from Collins J, who was at the material time Lead Judge of the Administrative Court. On 1 st September 2008 he handed down a judgment which did not simply deal with the particular circumstances of the case before him but sought to lay down general matters of procedure for the future, where applications were made under Part 8 of the CPR to quash a planning decision under section 288 of the Town and Country Planning Act 1990 (the 1990 Act). He stated that a defendant, who would invariably include the Secretary of State, ought to serve both evidence and grounds of resistance within a period of 10 weeks from service of the claim. He also stated that where defendants did not do as suggested there would not only be costs consequences but that the sequential exchange of skeleton arguments should be reversed with the defendant being required to serve his skeleton first.
The Secretary of State argued before Collins J that he was acting beyond his powers. It was pointed out that Part 8 did not require grounds of resistance to be served and expressly stated that a defendant “is not required to serve a defence”; and that to alter the chronology of the service of skeletons was contrary to Collins J's own Practice Direction of 4 th April 2008 for the filing of skeleton arguments and was introduced so as to compel compliance with his requirement to serve grounds of resistance. It was argued that Collins J had no power to make the general directions he did or to seek to implement changes by threatening cost consequences if the directions were not adhered to voluntarily. These arguments were rejected by Collins J.
The Secretary of State wished to challenge that ruling and sought permission to appeal which Lord Justice Waller granted.
The appeal was originally called on in November last year. On that occasion the Secretary of State, represented by Mr Maurici, repeated the challenges argued before Collins J. He also submitted that to give 10 weeks for filing evidence as a general rule was contrary to the provisions of Part 8.5. Furthermore he raised a further point which had not been raised before Collins J. Mr Maurici relied in addition on section 5 of the Civil Procedure Act 1997 (the 1997 Act) as substituted by the Constitutional Reform Act 2005 (the 2005 Act). We will set that section out in full below but in summary it imposes restrictions on the power to issue practice directions. It provides under section 5(1) for a procedure for making what are called “designated directions” made by the Lord Chief Justice (or his nominee) with the agreement of the Lord Chancellor, and under section 5(2) for practice directions given otherwise than under section 5(1) not to be given “without the approval of (a) the Lord Chancellor, and (b) the Lord Chief Justice”. Section 5(2) recognises that practice directions may be made otherwise than under the section 5(1) procedure without specifying by whom, but restricts the power so to do, making it a requirement that they are only issued with the approval of the Lord Chief Justice and the Lord Chancellor. In this instance there appears to be no suggestion that the Lord Chief Justice could appoint a nominee.
Mr Maurici's argument is that Collins J's judgment was, in effect, a practice direction and thus ultra vires being made without the consent of either the Lord Chief Justice or the Lord Chancellor.
At the November hearing there was no one representing the respondents to the appeal. Indeed the matter was academic as far as they were concerned, it having been sensibly agreed that the hearing of their Part 8 proceedings should not be delayed in this case while the points of general application were argued in the Court of Appeal.
Before that hearing we were already a little concerned that we were only to hear argument on one side, but when Mr Maurici developed his section 5 point, this seemed to us to have possibly wide implications, which made it imperative that we obtained the help of an advocate to the court and indeed give notice to the Lord Chancellor of the fact that arguments on section 5 might be ones in which he had an interest.
The matter was accordingly adjourned and an advocate to the court was appointed, Mr Gordon Nardell, for whose assistance we are grateful. The Lord Chancellor was notified and content not to be represented.
Overview on Practice Directions and the Rules
In considering any of the arguments in this case the starting point is an understanding of the legal force of the rules, the legal force of practice directions and to understand what are, and what are not, practice directions to which the 2005 Act was intended to apply. To what extent can a judge or indeed any court vary the rules? To what extent are practice directions binding on a court? Who has the power to issue or vary practice directions? What are practice directions?
The full historical position is very helpfully set out in an article of Professor Jolowicz published in March 2000 in the Cambridge Law Journal at page 53. What he there explains is that the judges had an inherent power to control their own proceedings, and did so by the making of general rules the precise force of which before the 19 th century it is unnecessary to debate. During the 19 th century, Acts of Parliament were passed, giving rules statutory force. Although that was so before 1875, for present purposes one need go no further than recognise that the first rules of court following the Judicature Act 1875 were scheduled to the Act itself. But not long after the passing of that Act judges began once more to make use of their extra statutory inherent power. During the late 19 th and 20 th centuries thus there were rules which had statutory force and practice directions which did not.
By the end of the 19 th century there had been set up the Rules Committee composed of judges and practitioners for making rules. The Rules Committee continued to exercise that function and indeed its successor, the Civil Procedure Rule Committee, continues to exercise that function. Prior to the CPR brought in by the 1997 Act, the relevant statutory provisions relating to the High Court and the Civil Division of the Court of Appeal were sections 84 and 85 of the Supreme Court Act 1981, granting the power to make rules to the “Rules Committee”, such rules to be made by statutory instrument (see section 84(8)). Thus, by virtue of being laid before Parliament and being subject to the negative resolution procedure, the rules had the force of delegated legislation. Until the 1997 Act the position was clear in at least one respect. Many practice directions were issued but if there was a conflict between a rule and a practice direction, since the rule was made by statutory instrument the rule would prevail.
At one time in recent history the issuing of practice directions was not it seems confined to the Lord Chief Justice or the Lord Chancellor or even Heads of Division. If one looks for example at a volume of the Weekly Law Reports (and we chose [1971] 1 WLR at random) one finds over the first few pages practice directions issued by the Senior Registrar, Compton Miller, without reference to the concurrence of anyone else (page 7); a practice direction given by Lord Hailsham as Lord Chancellor without the concurrence of anyone else (page 5); practice directions by Lord Widgery as Lord Chief Justice without the concurrence of anyone else (page 4); practice directions issued by the Chief Chancery Master R E Ball “by the directions of the Vice-Chancellor and the concurrence of the Lord Chancellor” (page 2) and the Senior Queen's Bench Master W Russell Lawrence “with the approval of Lord Widgery” (page 3).
There were also in the period prior to the passing of the 1997 Act practice directions being issued in local county courts without the concurrence of anyone such as the Lord Chief Justice or the Lord Chancellor, a matter addressed by Lord Woolf in his Report Access to Justice, and which resulted in section 5 of the 1997 Act. Section 5 was originally in these terms:-
“5. –(1) Practice directions may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by Civil Procedure Rules.
(2) After section 74 of the County Courts Act 1984 there is inserted –
Practice Directions
74A –(1) Directions as to the practice and procedure of county courts may be made by the Lord Chancellor.
(2) Directions as to the practice and procedure of county courts may not be made by any other person without the approval of the Lord Chancellor
(3) The power of the Lord Chancellor to make directions under subsection (1) includes power –
(a) to vary or revoke directions made by him or any other person, and
(b) to make different provision for different cases or different areas, including different...
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