Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
What has changed?
The Claim Form
The new practice direction states that the Claim Form must contain all material facts relevant to the claim and the claimant must make proper and necessary inquiries before seeking permission to apply to ensure that, so far as reasonably possible, all relevant facts are known. This adds emphasis to the need for the claimant, before submitting a claim, to ensure that they have investigated the case sufficiently to comply with this requirement.
The Claim Form must also be accompanied by, or include, a Statement of Facts and Grounds (‘SFG’). The main change here is that the emphasis is now very much on the SFG being succinct and concise. To hammer home the point, there is now a 40-page limit.
The Acknowledgment of Service
If the defendant decides to file an Acknowledgment of Service, the Summary Grounds contained within it must succinctly identify any relevant facts and the legal basis of the defendant’s response to the claimant’s case. As with the Claim Form, the new practice direction emphasises the importance of the Summary Grounds being succinct and concise, giving a 30-page limit. The practice direction notes that in many cases, the court will expect the Summary Grounds to be much shorter.
Once the case has been given permission by a judge, the next step is for the defendant to file Detailed Grounds with a new 40-page limit. The new practice direction gives the defendant the option of their Summary Grounds standing as their Detailed Grounds. It is not clear how popular this encouragement to avoid duplication will prove to be, however, it may be suitable for a defendant who is keen to keep costs to a minimum or has set out its case comprehensively at the permission stage.
Where a claimant seeks to rely on additional grounds to those in the Claim Form post-permission, there is new emphasis on the need for the claimant to make a formal application to the court for permission to amend the Claim Form in accordance with Part 23 of the Civil Procedure Rules (‘CPR’).
Unusually, the duty of candour is not mentioned until this part of the new rules. Nevertheless, as the Administrative Court Judicial Review Guide 2020 (here) describes the duty of candour as being a ‘continuing duty on all parties’, the new practice direction should not be taken to mean that the duty only arises at the Detailed Grounds stage.
The claimant must file and serve their skeleton argument not less than 21 days before the date of the hearing. The defendant must do the same not less than 14 days before the hearing. These time limits previously related to working days. Once again, the rules are now clear that skeleton arguments must be concise and must not exceed 25 pages. Those who file skeleton arguments that exceed the page limit can expect to have them returned by the court as there is now specific provision for this in the rules. The skeleton may not be re-filed until it is compliant. The page limit is especially demanding because skeleton arguments must now be self-contained and must not incorporate by reference material from previous pleadings.
The hearing and authorities bundles
No less than 21 days before the hearing date, the parties must agree and lodge the final hearing bundle with the court. This is the same day that the claimant’s skeleton argument is due and a week before the defendant’s deadline. Therefore, it is important to be prepared and front-load the work. This is not the time to be raising new matters; all facts and issues should be in the open at this point.
The authorities bundle must be lodged with the court no less than 7 days before the hearing. Alongside this, parties should also lodge a chronology, a list of issues and a time estimate. As all of these documents will take time to prepare and agree, it is important to discuss them with the other side well in advance of the hearing.
Applications for permission to intervene must be made under Part 23 of the CPR. They must be made promptly and the court is unlikely to accede to an application to intervene if it would have the consequence of delaying the proceedings. This is broadly consistent with the previous requirements.
If the applicant wishes to make representations at the hearing, it is now a requirement for the application to include a summary of these. Similarly, where an intervener wishes to file and serve evidence in the proceedings, a copy of this must be filed with the application to intervene.
The changes to the rules mean that interveners need to move quickly and be prepared to front-load the work associated with becoming involved in a judicial review claim.
The new practice direction 54B deals with urgent applications. It makes it clear that abuse of the urgents procedure will no longer be tolerated. The procedure is only for very urgent cases. An example of this is where the claimant is going to suffer serious irreversible harm unless the case is expedited.
The application must state why it needs to be considered urgently, the reasons why it was not made sooner and the timescale requested for consideration of the application.
In a recent decision of Lord Justice Lewis and Mr Justice Swift under the Hamid jurisdiction, the perils of failing correctly to follow the urgents procedure were demonstrated. In this case, which pre-dated the new practice direction 54B, counsel was required to appear in court to explain why he had used the urgents procedure for a case that was not urgent. Lord Justice Lewis determined that it was unacceptable to abuse the urgents procedure and reminded practitioners of the need to give very careful consideration to the appropriateness of using the urgents procedure. The new practice direction 54B supports that strict approach becoming the norm.
The new practice directions 54A and 54B have initiated a renewed focus on parties thinking carefully about how they approach judicial review claims. Care should be given when considering whether to use the urgents procedure and thought must be given to ensuring that documents are concise, succinct and compliant with page limits. It is clear that all parties, including interveners, should front-load their work and be prepared well in advance of important milestones in a case.