Claimants and Defendants in judicial review claims should be familiar with this new Court guide or they could face adverse costs consequences. In this post, Law mostly gives you a comparative analysis of the key changes from last year's guide.
The Administrative Court has issued updated guidance on judicial reviews.
It's a helpful document that distills the entire procedure in one place.
The new preface is blunt: "bad practices will not be tolerated." As the Court is now "one of the busiest specialist Courts in the High Court", those who fail to comply with the guidance are likely to receive little sympathy and may be penalised in costs.
To help Court users, I've summarised some of the key differences with last year's guide:
The claim
• Claimants should always make a copy of their own documents before they submit them to the Court in a bundle. This is because the Court keeps one copy of the documents and retains it. Original documents can be returned however (6.3.7).
• When filing evidence by email attachment the files should not normally exceed 50 pages, but parties should check with the Court office. [This seems a bit odd because more page numbers does not necessarily mean a larger attachment].
• On faxing the Court: "If any party intends to file documents by fax, that party should first telephone the relevant ACO to ensure that the fax machine is available, and that there is someone there to receive the document." (6.7.5).
• There is detailed guidance on the issue of 'rolling review' (6.10):
• Where the Defendant agrees to reconsider a decision it may be appropriate to end the claim and start a new claim if the Claimant wishes to challenge the new decision. There are only narrow exceptions to this principle:
• Where the case raises a point of public importance; and
• The issue with the original decision remains an important issue in the subsequent decision.
• Where the Defendant agrees to reconsider and has already re-made the decision under challenge, it may be best for the Court to allow the Claimant to amend the claim. The Claimant should note guidance in R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111, to the effect that the bundle may need to be redone, clearing out all material that is only relevant to the initial decision. The Court can still order that a new claim must be brought. (Comment: This squares with the text of the 2017 White Book Volume I commentary at section 54.6.4).
• Claimants should not try to avoid compliance with time limits by seeking to amend rather than bring a new claim. Any Claimants seeking to amend should give notice to the other parties.
The response
• Where a Defendant does not contest a claim, they should make it clear in Section C of the Acknowledgment of Service whether they intend to remain neutral or agree in principle that the decision/s should be quashed. If the Defendant agrees, the parties should attempt to settle promptly (7.3.3).
Detailed defences
• 9.1.4: Defendants may rely on summary grounds in place of detailed grounds but should inform the Court and other parties in writing within the time limit for filing the detailed grounds.
• Comment: In my experience, this is frequently ignored by Defendants and can lead to significant uncertainty over their position post-permission.
Case management
• Unsurprisingly, there is new text inserted here referring to the principle in the overriding objective of: "Ensuring compliance with rules, practice directions and orders". This principle permeates the Guidance as a whole.
• The list of powers delegated to Administrative Court Office lawyers has expanded and includes the power to dismiss a claim / application where a party has failed to comply with any order, rule or Practice Direction, and the power to deal with applications for relief from sanctions, stays and adjournments (12.4.4).
Relief from sanctions
• Parties wishing to avoid sanctions must apply for relief from sanctions if they have failed to comply with a rule, direction or Practice Direction which specifies a sanction for breach or if a sanction can otherwise be implied.
• 'Implied sanctions' are sanctions that do not appear expressly in the rule or direction but where breaching the rule would have the same effect as a sanction (12.9.1).
• Comment: As in other civil proceedings in the current litigation climate, wherever there has been a significant breach of the rules / directions, it's probably safer for parties to make anticipatory applications for relief from sanctions even when there is no express sanction accompanying the rule.
Urgent applications
• If an urgent application is made in the interim applications court ('Court 37' at the Royal Courts of Justice) instead of before the Administrative Court duty Judge then 'Court 37' is likely to refuse to deal with the application unless this would cause irreversible prejudice (16.2.7).
Skeleton arguments
• If served by email, these should be in Word document format and should not be handed to the Court on the day of the hearing. The preface makes clear that normally this will not be tolerated (17.4.1).
Costs
• Where a Court has already decided costs of the application for permission, the parties should not invite the Court to vary that costs order following a settlement (23.5.2).
Aarhus Convention claims
• There are considerable changes to the text of the guidance on procedures in these claims, clarifying the definition of such a claim and how to obtain a costs cap under the provisions of the Aarhus Convention (see 24.4).
Appeals
• Clarification (at 25.3.1 to 2), that where the Administrative Court refuses permission after an oral hearing, the Claimant may appeal to the Court of Appeal but must obtain permission from the Court of Appeal.
• Comment: see my post about the commercial judicial review case in which this procedure was clarified.