Some public law disputes, including appeals under sections 287 and 288 Town & Country Planning Act 1990, are dealt with by the Administrative Court under CPR Part 8 rather than in judicial review proceedings under CPR Part 54. However, in Bovale Limited v The Secretary of State for the Communities and Local Government and Herefordshire District Council [2008] EWHC 2143 Collins J, Lead Judge in the Administrative Court, indicated that in statutory planning appeals there should be a departure from the procedure set out in Part 8 because the rules as drafted are inappropriate for such cases. Pending consideration of the matter by the Civil Procedure Rules Committee, the new procedural timetable stipulated by Collins J should be presumed to apply in all relevant cases. The key points to note are as follows:-

  • Although the rules do not require defendants in such cases to serve a defence or even a summary of their grounds for resisting the claim, defendants will now be expected at least to consider serving such grounds (however short) at the same time as serving any evidence. 
  • In general, defendants will have 10 weeks from service of the claimant's evidence in which to serve their grounds and evidence, rather than the 21 days set out in the rules.

Background

Part 8 of the CPR provides an alternative procedure (i) for claims on questions which are unlikely to involve a substantial dispute of fact (for example a declaration as to construction of a document or a question of law) or (ii) where a rule or practice direction requires or permits the use of the alternative procedure. Practice Direction 8PD specifies a number of claims and applications which must be dealt with under Part 8 and this covers appeals under ss.287 and 288 Town & Country Planning Act 1990. Specific additional rules, set out in 8PD.22, apply to such claims.

The effect of the relevant parts of Part 8 and 8PD is that a defendant to a Part 8 claim must serve an Acknowledgment of Service indicating whether it contests the claim. The defendant is not required by any rule to include within the Acknowledgment of Service an indication of its grounds of resistance to the claim. Furthermore, rule 8.9 expressly provides that the defendant is not required to file a defence. Part 8 defendants are, however, required to serve any evidence opposing the claim and under 8PD.22 the time limit for doing so in ss. 287/288 cases is within 21 days after service of the claimant's evidence. If evidence is not served within that 21 day period, the defendant is precluded from relying on it unless the court otherwise directs. This case concerned a property developer, Bovale Limited, which brought proceedings against the Secretary of State for the Communities and Local Government (the "Secretary of State") and Hertfordshire District Council (the "Second Defendant") under section 288 of the Town and Country Planning Act 1990 (the "1990 Act") challenging a refusal of planning permission by the Second Defendant 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 whereas this was not required by the relevant procedural rules.

The decision 

  1.  Grounds of Defence

Collins J expressed dissatisfaction with the tendency in section 287 and 288 cases for defendants to submit grounds or evidence at a very late stage, since there is no obligation in the rules to file a defence. He found that the Court had the power to give directions as to the service of grounds of resistance under its general case management powers and noted that in judicial review cases, CPR 54 requires the defendant to set out a summary of its grounds for contesting the claim in the Acknowledgement of Service. Collins J stated that it is desirable and sensible for a statement of the grounds of resistance to be set out at an early stage in as short a form as appropriate so that consideration can be given to material arguments.

He also held that where the defendant chooses not to put in any grounds of resistance, it should put in the first skeleton argument and he ordered the Secretary of State to do so in this case. He noted that the Court may also impose cost sanctions where the defendant fails to disclose its grounds for resistance until a very late stage.

  1. Evidence

Collins J found that since the Secretary of State was not intending to file any evidence in this case, that part of the order requiring him to do so by a specified date should be set aside.

However, on the general issue of the timetable for serving evidence, he considered that the timescales set out in 8PD.22 were too short given the need to instruct representation and for those instructed to apply their minds to the issues. This was particularly the case given that claims must be started very promptly (within 6 weeks) and there is no requirement for a pre-action letter (as there is in judicial review) so often a defendant will have had little or no advance warning of the issues.

Collins J commented specifically on the provision in Part 8 (r.8.6) that precludes a defendant from relying on evidence at the hearing (without the court's permission) if it has not been filed and served within the 21 day period. He noted that such a provision may be reasonable in the context of private law but was certainly not in public law cases and stated that it would be contrary to good administration for the Court to preclude itself from dealing with relevant evidence and then make a wrong decision. In his view, the Part 8 procedure does not satisfactorily deal with the special situation of the Administrative Court and the nature of public law cases.

Comment

Collins J had already, in his earlier judgment in the case of Dinedor Hill Action Association v Herefordshire DC [2008] EWHC 1741 (Admin) indicated that on an application for directions in ss.287/288 cases the appropriate timetable for service of defendants' evidence was 10 weeks from service of the claimant's evidence. However, this decision goes further in that it sets a timetable which will be assumed to apply in all cases without the need for an application and creates a new expectation that defendants should also serve grounds of resistance within the same time period. It will be interesting to see whether and how these measures are dealt with in due course by the Civil Procedure Rules Committee.