In Bovale Ltd v Secretary of State for Communities and Local Government – Butterworths Law Direct 11.3.09 the issues which fell to be considered upon the appeal were, inter alia: (i) the extent to which a judge or a court could vary the CPR; what constituted a practice direction; (iii) who could issue and/or vary practice directions; and (iv) the extent to which practice directions were binding on a court.
The Court of Appeal held that the CPR had the force of delegated legislation and a judge had no power to alter them, whether by judgment or practice direction. In particular cases a judge would be free to exercise case management powers, conferred by the statutory rules, under CPR 3, but he could not simply alter the rules or practice directions with general effect. The right way to alter the rules was through the Rules Committee and the right way to alter a practice direction was under the procedure set out in s 5 of the Civil Procedure Act 1997, as substituted by the Constitutional Reform Act 2005. Further, there was a distinction between directions and guidance as to the way in which rules and practice directions would be interpreted. Such guidance was not in itself a practice direction.