Civil procedure – Local government – Administrative court – Part 8 claims – Time limits

Bovale Ltd v (1) The Secretary of State for the Communities and Local Government (2) Herefordshire District Council: QBD (Admin) (Mr Justice Collins): 1 September 2008.

The appellant secretary of state appealed against an order made by the deputy master to file and serve evidence and any grounds of resistance alternative or additional to those lodged by the defendant local authority.

The claim was made by the respondent 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 local authority. A witness statement accompanied the claim form and, accordingly, under practice direction 8, paragraph 22.9 of the Civil Procedure Rules (CPR), the secretary of state had to file any witness statement in opposition to the application within 21 days thereafter. Rule 8.9 of the CPR provided that the defendant did not have to file a defence. The secretary of state submitted that she was not intending to serve any evidence so that there was no need for the order made by the master in that respect – the order to file alternative or additional grounds of resistance to those lodged by the local authority required the equivalent of a defence to be filed which rule 8.9 said need not be done.

Held: (1) There had been a problem in section 288 cases that it was not until the last minute, usually when the claim had a hearing date, that the defendant got round to preparing a defence, because if there was no need to file a defence and if, as was often the case, no regard was paid to the obligation to serve evidence, the court was faced with the problem that at the last moment material was put forward, whether by way of a detailed defence or evidence or both.

(2) In theory the position should be that the Treasury Solicitor or the local authority or whoever was 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. That was a somewhat impractical requirement and also one which was capable of adding to the expense. According to the rules, if there was not service of evidence within the 21 days the defendant was then precluded from relying on such evidence unless the court otherwise directed. For private litigation that might be entirely reasonable, but it was something that in public law terms was usually inappropriate. It would be contrary to good administration for the court to preclude itself from dealing with relevant evidence and then make a wrong decision. The rules and the practice direction did not satisfactorily deal with the special situation of the Administrative Court and parties to claims such as the instant claim.

(3) Since the secretary of state was not proposing to file any evidence, that part of the order was not needed and was set aside.

(4) The obligation in judicial review cases was that a defendant’s acknowledgement of service should set out a summary of his grounds for contesting the claim. It was desirable and sensible that the explanation for the decision to resist was set out in as short a form as appropriate at as early a stage as was reasonably possible, so that the claimant and the court could focus on the material arguments. Rule 8.9 was considering a formal defence and not an indication of the grounds for resisting the claim. The court had power to give directions as to the service of such a document.

(5) The timescales set out in the practice direction and rules were far too short. It was quite unrealistic to expect the Treasury Solicitor and planning authorities to take proper instructions within the time set out. An appropriate period for lodging evidence and grounds for resisting the claim would be ten weeks, Dinedor Hill Action Association v Herefordshire DC [2008] EWHC 1741 (Admin), [2008] NPC 90 considered. Where the defendant chose not to put in any grounds for resisting, and thus the grounds set out in the claim form represented the way in which the case was to be put by the claimant, it was for the defendant to put in the first skeleton argument.

Appeal allowed.

David Blundell (instructed by Treasury Solicitor) for the appellant; Timothy Sheppard (instructed by Martineau Johnson) for the respondent.