Planning decision – Civil Procedure Rules – Practice direction – Judge purporting to vary or alter rules of procedure – Secretary of state challenging decision – Whether judge having power to issue or vary practice directions – Appeal allowed
The respondent developer made a claim, under section 288 of the Town and Country Planning Act 1990, to quash a decision by the appellant secretary of state upholding a refusal of planning permission by the local authority. In the course of those proceedings, an application was made to the High Court to set aside an order made by the deputy master requiring the appellant to file and serve evidence by a specified date.
The judgment did not only deal with the particular circumstances of the case but also sought to lay down general matters of procedure in cases where applications were made under CPR 8 to quash planning decisions under section 288. The judge stated that a defendant, which would invariably include the appellant, ought to serve both evidence and grounds of resistance within a period of 10 weeks from service of the claim. Further, if a defendant failed to do so, not only would there be costs consequences but the sequential exchange of skeleton arguments would be reversed, with the defendant being required to serve its arguments first.
The appellant argued that the judge was acting beyond his powers; CPR 8 did not require grounds of resistance to be served and expressly stated that a defendant was not required to serve a defence. To alter the chronology of the service of skeleton arguments was contrary to the judge’s own practice direction for filing such arguments, which was introduced to compel compliance with his requirement to serve grounds of resistance. It was argued that the judge had no power to make the general directions or to seek to implement changes by threatening costs consequences if the directions were not adhered to voluntarily. The judge rejected those arguments.
The appellant appealed, contending that the judgment was in effect a practice direction and thus ultra vires, having been made without the consent of either the Lord Chief Justice or the Lord Chancellor in accordance with section 5 of the Civil Procedure Act 1997, as substituted by the Constitutional Reform Act 2005.
Held: The appeal was allowed.
Since the Civil Procedure Rules had the force of delegated legislation, the judge had no power to alter them, whether by judgment or practice direction. In particular cases, a judge would be free to exercise case-management powers under CPR 3, such powers were given by the statutory rules, but a judge could not alter the rules or practice directions with general effect. The judge was bound to recognise and had no power to vary or alter any practice directions, whether brought in under the procedure in section 5(1) or (2) of the 1997 Act or by any existing practice directions issued prior to the 2005 Act.
The issue of a practice direction was the exercise of an inherent power, even when carried out pursuant to section 5(1) or (2). If a head of division exercised that inherent power by giving directions as to a procedure to be adopted in a particular court, as happened before the 2005 Act, and a fortiori if the direction was given with the approval or agreement of the Lord Chief Justice and the Lord Chancellor, it would not be open to another judge of the court to ignore it or to suggest in a judgment that a practice direction should no longer be followed in that court.
There was a distinction between directions and guidance as to the way in which rules and practice directions would be interpreted. One objective of the practice directions, which supplemented the rules, was to provide guidance to litigants, but they also contained directions as to the procedure that should be followed. The nature of the guides was different since they should not contain directions. They explained, inter alia, how practice directions applied and were to be interpreted. Such guidance was not a practice direction and, rightly, had not been treated as such. It followed that since guides were not practice directions, judgments, in so far as they were providing guidance on how the rules and practice directions work, could not be said to be practice directions. Parliament had not intended to include judgments in its definition of practice directions in section 9(1) of the 1997 Act.
Clear language would have been needed to abrogate the judge’s power to include in a judgment procedural directions of general application and to require the approval of the Lord Chancellor to the exercise of the power. That clear language was not to be found in the 1997 Act. The definition of “practice directions” in section 9(1) was not sufficient. The words “directions as to the practice and procedure of any court within the scope of Civil Procedure Rules” were capable of referring only to directions that were issued by “practice directions” as such, that is by so-called practice directions of the kind thjat, before the 2005 Act, were issued by the courts acting in an administrative capacity.
Per curiam: Parties were entitled to start from the position that the relevant rules and practice directions would apply to their case. The onus was on the party seeking a different form of process and on the judge who might want to exercise his case-management powers in a particular case to demonstrate that the case was outside the norm. A judge was not entitled to put the onus on a defendant to persuade the court that a procedure inconsistent with the rules and practice directions should not be followed. The rules should be altered by way of the Rule Committee and the correct way of revising a practice direction was under the procedure in section 5 of the 1997 Act.
James Maurici (instructed by the Treasury Solicitor) appeared for the appellant; Gordon Nardell (instructed by the Treasury Solicitor) as advocate to the court.
Eileen O’Grady, barrister
