Civil procedure – Local government – Planning appeals – Practice directions
Secretary of State for Communities & Local Government v (1) Bovale Ltd (2) Herefordshire District Council: CA (Civ Div) (Lords Justice Waller (V-P), Dyson, Stanley Burnton): 11 March 2009
The appellant secretary of state appealed against a decision ([2008] EWHC 2143 (Admin), [2008] 105(36) LSG 22) in which the lead judge of the Administrative Court sought to lay down general matters of procedure for the future, where applications were made under part 8 of the Civil Procedure Rules to quash a planning decision under section 288 of the Town and Country Planning Act 1990.
A developer (B) had applied for planning permission for the development of a ‘total care village’ for the elderly. The local authority refused permission and an inspector decided against B on appeal.
B applied to quash that decision. The local authority put in a document setting out its grounds of resistance. B then applied for an order for the secretary of state to file and serve summary grounds of defence. The deputy master made an order for the secretary of state to file and serve any alternative or additional grounds for resistance to those lodged by the local authority. The secretary of state appealed against that order.
The judge gave a judgment in which he indicated that a defendant in a section 288 case, 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 be costs consequences and that the sequential exchange of skeleton arguments should be reversed, with the defendant being required to serve his skeleton first. The secretary of state submitted that the judge had acted beyond his powers and, contrary to the provisions of part 8, that he 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.
Held: (1) Section 5 of the Civil Procedure Act 1997, as substituted by the Constitutional Reform Act 2005, provided under section 5(1) for practice directions to be 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 the lord chancellor and the lord chief justice.
(2) There were wide powers given by the CPR for judges to depart from the rules and practice directions in the exercise of their case management powers in individual cases and to further the overriding objective. But the wide powers given in individual cases could not be construed as giving the power to individual judges or any court simply to vary the rules or practice directions generally.
(3) The section 5 prohibition on practice directions being issued without the approval of the lord chief justice and the lord chancellor was not limited to practice directions which supplemented the CPR and were referred to in a rule. The definition of ‘practice directions’ in section 9(1) of the 1997 act was extremely wide.
(4) However, there was a distinction between directions and guidance as to the way in which rules and practice directions would be interpreted. Since guides, such as the Chancery Guide and the Commercial Court Guide, were not practice directions, judgments, in so far as they were providing guidance on how the rules and practice directions worked could not be said to be practice directions. A judgment of the court that prescribed or suggested a procedure which should be followed where there was no rule or practice direction covering the position was not a practice direction within section 9(1) of the 1997 act.
(5) The judge did not deliver a judgment that provided guidance on interpretation of the rules and practice directions, which he could have done, nor was he prescribing procedure in a ‘gap’ case, which he could also have done. Rather, he was purporting by his judgment to change the rules under part 8 and practice direction 8 of the CPR, and that was something which he was not entitled to do.
Nor was he free to seek to enforce his rule change by ordering a reversal of the sequence of skeleton arguments and costs consequences, if defendants did not voluntarily do that which his rule change would have required.
Appeal allowed.
James Maurici (instructed by the Treasury solicitor) for the appellant; no appearance or representation for the first respondent; Gordon Nardell (instructed by the Treasury solicitor) for advocate to the court.
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