In Bovale Limited v Secretary of State for the Communities and Local Government and Herefordshire District Council [2009] EWCA Civ 171 the Court of Appeal overturned Collins J's decision (see our e-bulletin here) and 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.

The key points to note are as follows:

  • 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 Town & Country Planning Act 1990 ("TCPA 1990") shall be dealt with under Part 8, including the specific rules set out in Practice Direction 8PD. Contrary to Collins J's 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 after service of the claimant's evidence.
  • The Court can still exercise its wide case management powers under CPR Part 3 in any particular case to depart from the Part 8 process, where appropriate.  

Background

Part 8 of the CPR sets out an alternative process to be used in certain types of claims, including appeals under sections 287 and 288 TCPA 1990. 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 after service of the claimant's evidence, pursuant to 8PD.22.

This case concerned a property developer, Bovale, which brought proceedings under section 288 TCPA 1990 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.

The decision of Collins J

Collins J expressed dissatisfaction with the Part 8 procedure as it applied to claims under sections 287 and 288 TCPA 1990. He found that the Court's general case management powers enabled him 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.
  • Given the nature of appeals under the TCPA 1990, 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 8PD.22.  

The power of judges to vary rules or practice directions

The Secretary of State appealed Collins J's decision on the basis he was acting outside his powers. The Court of Appeal gave detailed consideration as to what power a judge has to issue procedural directions.

  1. No power to vary Civil Procedure Rules

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

  1. No power to vary practice directions

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

  1. Power to give procedural directions where there is a 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 CPA 1997.

  1. Exercise of the Court's case management powers

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

  1. Power to give guidance as to the application or interpretation of the rules and practice directions

The Court of Appeal also recognised that section 5(5) CPA 1997 permits judges to give guidance on the application and interpretation of the CPR and practice directions.

Decision of the Court of Appeal on Collins J’s judgment

The Court of Appeal held that the judgment of Collins J was more than mere guidance and did not simply prescribe a procedure in a "gap" case – since the subject of his purported directions was already covered by Part 8 of the CPR and the accompanying practice direction. In purporting to make such directions, the Court of Appeal held that Collins J was attempting to vary existing rules and a practice direction which he did not have power to do. Further, they held that a judge 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 against his decision was allowed.

Effect on appeals under the TCPA 1990

The decision therefore confirms that appeals under sections 287 and 288 TCPA 1990 are to be governed by the process as currently set out in CPR Part 8 and the practice direction, unless the Court in any particular case rules otherwise. Particularly:

  • The defendant is required to serve an Acknowledgment of Service (the Court of Appeal upholding Collins J's ruling on this point).
  • The defendant is not required to serve a defence or grounds for resisting the claim.  
  • 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 by Collins J about the application of the Part 8 process to claims under sections 287 and 288 TCPA 1990 arguably still 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 CPR 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.