Court of Appeal Clarifies Procedural Rules to Apply to Certain Part 8 Claims - International Law Office

Introduction
Background
First Instance Decision
Power to Vary Rules or Practice Directions
Appeal Decision
Comment


Introduction

In Bovale Limited v Secretary of State for the Communities and Local Government [2009] EWCA Civ 171 the Court of Appeal clarified the boundaries of a judge's power to give procedural directions. The judgment should bring some clarity to litigants as to the way in which the court may exercise its case management powers.

Judges have no power to give procedural directions which depart from or vary existing rules or practice directions, but they may issue guidance on their application or interpretation. A majority of the Court of Appeal also held that judges may give procedural directions on issues which are not covered by existing rules or practice directions.

Appeals under Sections 287 and 288 of the Town and Country Planning Act 1990 shall be dealt with under Part 8, including the specific rules set out in Practice Direction 8. Contrary to the first instance direction, defendants are therefore not required to serve a defence or even indicate their grounds for resisting the claim, and are required to serve any evidence within 21 days of service of the claimant's evidence.

The court can still exercise its wide case management powers under Part 3 of the Civil Procedure Rules in any particular case to depart from the Part 8 process, where appropriate.

Background

Part 8 of the Civil Procedure Rules sets out an alternative process to be used in certain types of claim, including appeals under Sections 287 and 288 of the Town and Country Planning Act. It requires a defendant to serve an acknowledgment of service indicating whether it contests the claim, but does not require it to indicate the grounds. Nor is the defendant required to serve a defence. Any evidence opposing the claim must, in Section 287 and 288 cases, be served within 21 days of service of the claimant's evidence, pursuant to Part 8, Practice Direction 22.

This case concerned a property developer, Bovale, which brought proceedings under Section 288 of the Town and Country Planning Act challenging a refusal of planning permission by Hertfordshire District Council which was upheld by the secretary of state.

Bovale filed a Part 8 claim form and a witness statement. The secretary of state indicated that it was not intending to serve any evidence, but was subsequently ordered by a deputy master to file and serve evidence and any grounds of resistance by a specified date. The secretary of state appealed against the order on the basis that it required it to file the equivalent of a defence where this was not required by the Part 8 rules.

First Instance Decision

The first instance court expressed dissatisfaction with the Part 8 procedure as it applied to claims under Sections 287 and 288 of the Town and Country Planning Act. It found that its general case management powers allowed it to make directions as to the procedure in such cases and in particular directed that defendants should be expected to consider serving grounds of resisting the claim with their evidence. Failure to do so could lead to cost consequences and to the defendant being required to submit the first skeleton argument rather than the claimant. The court further directed that, given the nature of appeals under the Town and Country Planning Act, defendants should have 10 weeks from service of the claimant's evidence in which to serve their evidence (along with the grounds for resisting the claim), rather than the 21 days set out in Part 8, Practice Direction 22.

Power to Vary Rules or Practice Directions

The secretary of state appealed this decision on the basis that the court was acting outside its powers. The Court of Appeal gave detailed consideration as to what power a judge has to issue procedural directions.

Civil Procedure Rules
The Court of Appeal confirmed that as the Civil Procedure Rules have the force of delegated legislation, a judge has no power to alter the Civil Procedure Rules with general effect.

Practice directions
The Court of Appeal held that a judge has no power to vary any existing practice direction. Practice directions may be altered or varied only in accordance with the process set out in Section 5 of the Civil Procedure Act 1997, as amended by the Constitutional Reform Act 2005.

Gap in existing practice directions
The majority of the Court of Appeal held that a judgment of the court which prescribes a procedure to be followed where there is no rule or practice direction covering that position does not constitute a 'practice direction', with the result that such directions may be given without the need to follow the process set out in the Civil Procedure Act.

Case management powers
The Court of Appeal emphasized that the court possesses wide case management powers under the Civil Procedure Rules, which permit any judge to depart from or vary the implementation of existing rules or practice directions where appropriate in individual cases.

Application and interpretation of rules and practice directions
The Court of Appeal also recognized that Section 5(5) of the Civil Procedure Act permits judges to give guidance on the application and interpretation of the Civil Procedure Rules and practice directions.

Appeal Decision

The Court of Appeal held that the first instance judgment was more than mere guidance and did not simply prescribe a procedure in a 'gap' case, since the subject of the purported directions was already covered by Part 8 of the Civil Procedure Rules and the accompanying practice direction. In purporting to make such directions, the Court of Appeal held that the lower court was attempting to vary existing rules and a practice direction which it did not have power to do. Further, they held that a court is not free to seek to achieve that result by suggesting that if parties do not voluntarily disapply rules or a practice direction, costs consequences will follow. Accordingly, the appeal was allowed.

The decision therefore confirms that appeals under Sections 287 and 288 of the Town and Country Planning Act are to be governed by the process as set out in Part 8 of the Civil Procedure Rules and the practice direction, unless the court in any particular case rules otherwise. In particular:

• the defendant is required to serve an acknowledgment of service (the Court of Appeal upholding the first instance ruling on this point);
• the defendant is not required to serve a defence or grounds for resisting the claim; and
• the defendant must serve its evidence in opposition to the application within 21 days after service of the claimant's evidence.

Comment

The concerns identified at first instance about the application of the Part 8 process to claims under Sections 287 and 288 of the Town and Country Planning Act arguably remain. It is not yet clear whether the Civil Procedure Rules Committee will now consider changes to the Part 8 process, as set out in the existing Civil Procedure Rules and practice direction, as far as it applies to claims under Sections 287 and 288; but unless and until it does, it is that process which will need to be followed in such cases.

For further information on this topic please contact Andrew Lidbetter, Nusrat Zar or Anna Condliffe at Herbert Smith LLP by telephone (+44 20 7374 8000) or by fax (+44 20 7374 0888) or by email (andrew.lidbetter@herbertsmith.com or nusrat.zar@herbertsmith.com or anna.condliffe@herbertsmith.com).