Secretary of State for Communities & Local Government v Bovale Ltd & Anor

This is an appeal from Collins J, who was at the material time Lead Judge of the Administrative Court. On 1^st September 2008 he handed down a judgment which did not simply deal with the particular circumstances of the case before him but sought to lay down general matters of procedure for the future, where applications were made under Part 8 of the CPR to quash a planning decision under section 288 of the Town and Country Planning Act 1990 (the 1990 Act). He stated that a defendant, who would invariably include the Secretary of State, ought to serve both evidence and grounds of resistance within a period of 10 weeks from service of the claim. He also stated that where defendants did not do as suggested there would not only be costs consequences but that the sequential exchange of skeleton arguments should be reversed with the defendant being required to serve his skeleton first.

The Secretary of State argued before Collins J that he was acting beyond his powers. It was pointed out that Part 8 did not require grounds of resistance to be served and expressly stated that a defendant “is not required to serve a defence”; and that to alter the chronology of the service of skeletons was contrary to Collins J’s own Practice Direction of 4^th April 2008 for the filing of skeleton arguments and was introduced so as to compel compliance with his requirement to serve grounds of resistance. It was argued that Collins J had no power to make the general directions he did or to seek to implement changes by threatening cost consequences if the directions were not adhered to voluntarily. These arguments were rejected by Collins J.

The Secretary of State wished to challenge that ruling and sought permission to appeal which Lord Justice Waller granted.

The appeal was originally called on in November last year. On that occasion the Secretary of State, represented by Mr Maurici, repeated the challenges argued before Collins J. He also submitted that to give 10 weeks for filing evidence as a general rule was contrary to the provisions of Part 8.5. Furthermore he raised a further point which had not been raised before Collins J. Mr Maurici relied in addition on section 5 of the Civil Procedure Act 1997 (the 1997 Act) as substituted by the Constitutional Reform Act 2005 (the 2005 Act). We will set that section out in full below but in summary it imposes restrictions on the power to issue practice directions. It provides under section 5(1) for a procedure for making what are called “designated directions” made by the Lord Chief Justice (or his nominee) with the agreement of the Lord Chancellor, and under section 5(2) for practice directions given otherwise than under section 5(1) not to be given “without the approval of (a) the Lord Chancellor, and (b) the Lord Chief Justice”. Section 5(2) recognises that practice directions may be made otherwise than under the section 5(1) procedure without specifying by whom, but restricts the power so to do, making it a requirement that they are only issued with the approval of the Lord Chief Justice and the Lord Chancellor. In this instance there appears to be no suggestion that the Lord Chief Justice could appoint a nominee.

Mr Maurici’s argument is that Collins J’s judgment was, in effect, a practice direction and thus ultra vires being made without the consent of either the Lord Chief Justice or the Lord Chancellor.

At the November hearing there was no one representing the respondents to the appeal. Indeed the matter was academic as far as they were concerned, it having been sensibly agreed that the hearing of their Part 8 proceedings should not be delayed in this case while the points of general application were argued in the Court of Appeal.

Before that hearing we were already a little concerned that we were only to hear argument on one side, but when Mr Maurici developed his section 5 point, this seemed to us to have possibly wide implications, which made it imperative that we obtained the help of an advocate to the court and indeed give notice to the Lord Chancellor of the fact that arguments on section 5 might be ones in which he had an interest.

The matter was accordingly adjourned and an advocate to the court was appointed, Mr Gordon Nardell, for whose assistance we are grateful. The Lord Chancellor was notified and content not to be represented.

In considering any of the arguments in this case the starting point is an understanding of the legal force of the rules, the legal force of practice directions and to understand what are, and what are not, practice directions to which the 2005 Act was intended to apply. To what extent can a judge or indeed any court vary the rules? To what extent are practice directions binding on a court? Who has the power to issue or vary practice directions? What are practice directions?

The full historical position is very helpfully set out in an article of Professor Jolowicz published in March 2000 in the Cambridge Law Journal at page 53. What he there explains is that the judges had an inherent power to control their own proceedings, and did so by the making of general rules the precise force of which before the 19^th century it is unnecessary to debate. During the 19^th century,Acts of Parliament were passed, giving rules statutory force. Although that was so before 1875, for present purposes one need go no further than recognise that the first rules of court following the Judicature Act 1875 were scheduled to the Act itself. But not long after the passing of that Act judges began once more to make use of their extra statutory inherent power. During the late 19^th and 20^th centuries thus there were rules which had statutory force and practice directions which did not.

By the end of the 19^th century there had been set up the Rules Committee composed of judges and practitioners for making rules. The Rules Committee continued to exercise that function and indeed its successor, the Civil Procedure Rule Committee, continues to exercise that function. Prior to the CPR brought in by the 1997 Act, the relevant statutory provisions relating to the High Court and the Civil Division of the Court of Appeal were sections 84 and 85 of the Supreme Court Act 1981, granting the power to make rules to the “Rules Committee”, such rules to be made by statutory instrument (see section 84(8)). Thus, by virtue of being laid before Parliament and being subject to the negative resolution procedure, the rules had the force of delegated legislation. Until the 1997 Act the position was clear in at least one respect. Many practice directions were issued but if there was a conflict between a rule and a practice direction, since the rule was made by statutory instrument the rule would prevail.

At one time in recent history the issuing of practice directions was not it seems confined to the Lord Chief Justice or the Lord Chancellor or even Heads of Division. If one looks for example at a volume of the Weekly Law Reports (and we chose [1971] 1 WLR at random) one finds over the first few pages practice directions issued by the Senior Registrar, Compton Miller, without reference to the concurrence of anyone else (page 7); a practice direction given by Lord Hailsham as Lord Chancellor without the concurrence of anyone else (page 5); practice directions by Lord Widgery as Lord Chief Justice without the concurrence of anyone else (page 4); practice directions issued by the Chief Chancery Master R E Ball “by the directions of the Vice-Chancellor and the concurrence of the Lord Chancellor” (page 2) and the Senior Queen’s Bench Master W Russell Lawrence “with the approval of Lord Widgery” (page 3).

There were also in the period prior to the passing of the 1997 Act practice directions being issued in local county courts without the concurrence of anyone such as the Lord Chief Justice or the Lord Chancellor, a matter addressed by Lord Woolf in his Report Access to Justice, and which resulted in section 5 of the 1997 Act. Section 5 was originally in these terms:-

“5.

–(1) Practice directions may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by Civil Procedure Rules.

(2)

After section 74 of the County Courts Act 1984 there is inserted –

Practice Directions

74A –(1) Directions as to the practice and procedure of county courts may be made by the Lord Chancellor.

(2)

Directions as to the practice and procedure of county courts may not be made by any other person without the approval of the Lord Chancellor

(3)

The power of the Lord Chancellor to make directions under subsection (1) includes power –

(a)

to vary or revoke directions made by him or any other person, and

(b)

to make different provision for different cases or different areas, including different provision –

(i)

for a specific court, or

(ii)

for specific proceedings, or a specific jurisdiction,

specified in the directions.

(4)

References in this section to the Lord Chancellor include any person authorised by him to act on his behalf.”

The Lord Chancellor delegated his power to the Head of Civil Justice, Sir Richard Scott V-C and then to the Deputy Head of Civil Justice, May LJ and ultimately to Dyson LJ when he became Deputy Head of Civil Justice.

Professor Jolowicz summarises the position brought about by section 5 of the 1997 Act as it was before the 2005 Act came into force in this way:-

“Three distinct situations are envisaged. First, a new section 74A is added to the County Courts Act 1984 giving power to the Lord Chancellor to make directions as to the practice and procedure of the county courts. Secondly it is enacted that practice directions may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by rules; this is a very limited provision since paragraph 3 refers only to the transfer of proceedings within the High Court or between County Courts. Thirdly, paragraph 6 of Schedule 1 provides that “Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.”

In none of its references to practice directions does the Act condescend to give the phrase a meaning, and only in reference to the County Courts does it say by whom they are to be made. There is nothing to suggest that the Civil Procedure Rule Committee itself has power to make practice directions, and the court’s traditional extra-statutory power survives unscathed. Now, however, the Act has created an additional, statutory, power to make directions under the Civil Procedure Rules, and that power, presumably, inheres in the court.”

In his article he then goes on to express some concern about the possibility that, following the 1997 Act, some practice directions may be made under the authority of a rule and thus have the statutory force of delegated legislation and some not. His ultimate conclusion is that “It is right that the court should retain its power to regulate its own procedure within the limits set by statutory rules, and to fill in gaps left by those rules; it is wrong that it should have power to actually legislate” [page 61].

The position as at December 2000 is summarised helpfully by Hale LJ (as she then was) in Re C (Legal Aid : Preparation of Bill of Costs) [2001] 1 FLR 602:-

“(15)

Significantly for the purposes of this case, s 4 contains what was formerly known as a ‘Henry VIII clause’. Section 4(l) allows the Lord Chancellor by order to amend, repeal or revoke any enactment in consequence of ss 1 and 2 and the Civil Procedure Rules 1998 themselves; this power is to be exercisable by Statutory Instrument and subject to annulment by negative resolution: see s 4(3), (4). Section 4(2) also allows him by order to amend, repeal or revoke any enactment passed or made before the section came into force, in order to facilitate the making of Civil Procedure Rules 1998. Orders made under this wider power have to receive the positive approval of each House of Parliament: see s 4(5). 

(16)

Section 5 of the 1997 Act is headed ‘Practice Directions’. Under s 5(1), ‘Practice Directions may provide for any matter which, by virtue of para 3 of Sch 1, may be provided for by Civil Procedure Rules’. Paragraph 3 of Sch 1 allows the Civil Procedure Rules 1998 to deal with ‘Removal of Proceedings’ within the High Court and between county courts. This would not normally be done by Rules of Court, still less by Practice Directions. Mr Burrows speculates in his skeleton argument that the reference to para 3 may be a misprint. Misprints in Acts of Parliament are extremely rare. In my view, the express grant of a power to do this by Civil Procedure Rules 1998 and by Practice Direction was deliberate, as otherwise there might be doubt about whether it was a matter of ‘practice and procedure’ which could properly be dealt with in that way. 

(17)

Section 5(2) inserts a new s 74A in the County Courts Act 1984 dealing with Practice Directions in county courts. Section 74A(1) gives power to the Lord Chancellor to make directions as to the practice and procedure of county courts. Section 74A(2) forbids anyone else to make such directions without his approval. Previously, all courts had an inherent power to regulate their own practice and procedure: see Langley v North West Water Authority [1991] 1 WLR 697. Local county court protocols, such as that upheld by this court in Langley, now require approval. Section 74A(4) allows the Lord Chancellor to delegate his powers under the section. 

(18)

Commenting on s 74A, the editors of TheWhite Book Service 2000, Civil Procedure, Vol 2, para 9A-840, point out that ‘In the High Court, practice directions are issued by the heads of division in the exercise of inherent power’. The development of the use of such Practice Directions despite the existence of statutory rule making bodies is discussed by Professor Jolowicz, in Practice Directions and the Civil Procedure Rules (CLJ 53, 2000), to which we were helpfully referred. 

(19)

Finally, para 6 of Sch 1 to the 1997 Act provides that ‘Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions’. This tells us nothing about who may make such directions or what they may contain. Section 9(2) defines ‘Practice Directions’ as ‘directions as to the practice and procedure of any court within the scope of the Civil Procedure Rules’ thus taking the present matter no further. 

(20)

It seems clear, therefore, that there is no separate category of Practice Direction for which new vires are given by the 1997 Act (as opposed to the extension in s 5(1) of what may be done by existing categories of Practice Direction). The civil procedure Practice Directions are made for the county courts under s 74A of the County Courts Act 1984 and for the High Court under the inherent power of the Heads of Division. The Lord Chancellor has delegated his powers under s 74A, at first to Sir Richard Scott V-C (as he then was), as Head of Civil Justice, and subsequently to May LJ, as Deputy Head of Civil Justice. Thus the Civil Procedure Practice Directions are in fact made by the Lord Chief Justice, the Master of the Rolls (so far as they affect civil appeals), the Vice-Chancellor and the Head or Deputy Head of Civil Justice. It is perhaps unfortunate that this process is not made clear, as it is in other Practice Directions, in the official versions published by the Lord Chancellor’s Department and reproduced in the textbooks. A good example is the President’s Practice Direction about costs in family proceedings (Practice Direction: Civil Procedure Rules 1998: Allocation of Cases: Costs [1999] 1 FLR 1295, sub nom Practice Direction (Family Proceedings: Allocation and Costs) [1999] 1 WLR 1128), mentioned in para (11) above, which is signed by the President and states that it has the approval of the Lord Chancellor and can thus apply in county courts as well as the Family Division of the High Court. 

(21)

Unlike the Lord Chancellor’s orders under his ‘Henry VIII’ powers, the Civil Procedure Rules 1998 themselves and the 1991 Remuneration Regulations, the Practice Directions are not made by Statutory Instrument. They are not laid before Parliament or subject to either the negative or positive resolution procedures in Parliament. They go through no democratic process at all, although if approved by the Lord Chancellor he will bear ministerial responsibility for them to Parliament. But there is a difference in principle between delegated legislation which may be scrutinised by Parliament and ministerial executive action. There is no ministerial responsibility for Practice Directions made for the Supreme Court by the Heads of Division. As Professor Jolowicz says, loc cit, p 61, ‘It is right that the court should retain its power to regulate its own procedure within the limits set by statutory rules, and to fill in gaps left by those rules; it is wrong that it should have power actually to legislate’. 

(22)

Mr Burrows relies upon the definition given to ‘subordinate legislation’ in the Interpretation Act 1978, s 21(1): 

‘… “subordinate legislation” means Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act.’ 

He suggests that this places the Practice Directions on an equal footing with the Civil Procedure Rules 1998. He rightly points out that the Civil Procedure Rules 1998 are dependent upon the Practice Directions for their operation. They cannot work without the Practice Directions, which must therefore be assumed effectively to form part of the Rules. 

(23)

This is to confuse the fact that an Instrument may fall within the definition of subordinate legislation because it is ‘made under’ an Act of Parliament with what that Act of Parliament allows it to do. Indeed, in so far as the Practice Directions apply to the Supreme Court, they are probably not ‘made under’ any Act at all: the fact that the Civil Procedure Rules 1998 ‘may refer’ to them does not mean that they are ‘made under’ the 1997 Act. In any event, there is nothing in s 74A of the County Courts Act 1984 or in the Civil Procedure Act 1997 to confer power upon those making Practice Directions to revoke or amend rules or regulations made by Statutory Instrument. Indeed such powers are not expressly conferred on the rule making body. The rules must be confined to the purposes for which the power to make them is granted. The only express power to revoke or amend other legislation in consequence of the Civil Procedure Rules 1998 is that given to the Lord Chancellor by s 4 of the Act. 

(24)

In my view, therefore, there is no need to consider whether or not the Practice Directionabout Costs is inconsistent with the Remuneration Regulations 1991, because the Practice Direction has no power to override the Regulations. The question of implied amendment or repeal simply does not arise. In fact, however, it is comparatively easy to reconcile them as the judge did. The costs of preparing a bill are now to be considered allowable, because the general practice has now changed, but only up to the maximum permitted by the Regulations, which is to be taken as setting the ‘reasonable cost’ in the context in which the Regulations apply.”

It will be seen that she refers to a Note in Volume 2 of The White Book 2000 pointing out that in contrast to the position brought about by section 74A for the County Courts, “In the High Court practice directions are issued by the Head of Divisions in the exercise of their inherent power.” A page of the Ministry of Justice website with which we have been supplied dated 2007 also suggests that until the inception of the 2005 Act to which we are about to turn, practice directions were made by the Heads of Division. In that list does not appear the President of the Family Division, but we would think that was an oversight. Family proceedings have historically been separately dealt with by the legislators but our understanding is that post the 1997 Act the President issued practice directions for the Family Division, and the Family Division seems now to be governed by provisions similar to the substituted section 5 of the 1997 Act, to which we are about to turn (see section 81 of the Courts Act 2003 as amended by the 2005 Act).

Although our research has not been comprehensive, simply following the index to the Weekly Law Reports and looking at practice directions issued during the period post-1997 Act through to the implementation of the 2005 Act, practice directions seem to have been issued normally only by the Heads of Division or at least with the approval of the Head of Division [see in the latter category [2003] 1 WLR 1653 issued by the Chief Chancery Master with the approval of the Vice Chancellor]. The only possible exceptions we came across were The Annual Statement headed ‘Practice Statement’ issued by Scott Baker J in the Administrative Court [2002] 1 WLR 810 and a Practice Statement issued by Collins J in the Administrative Court [2004] 1 WLR 644.

The 2005 Act moved matters on a further stage. This followed the major constitutional changes under which the Lord Chancellor ceased to be a judge and followed the making of the concordat. As was made clear by the then Lord Chancellor in Parliament the 2005 Act was intended to reflect the concordat. That Act repealed section 74A (see the 2005 Act section 15(1) and Sch.4, part 1, para 169) and substituted section 5 of the 1997 Act so as to provide as follows:

“(1)

Practice directions may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.

(2)

Practice directions given otherwise than under subsection (1) may not be given without the approval of

(a)

the Lord Chancellor, and

(b)

the Lord Chief Justice

(3)

Practice directions (whether given under subsection (1) or otherwise) may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by Civil Procedure Rules.

(4)

The power to give practice directions under subsection (1) includes power –

(a)

to vary or revoke directions given by any person;

(b)

to give directions containing different provision for different cases (including different areas);

(c)

to give directions containing provision for a specific court for specific proceedings or for a specific jurisdiction.

(5)

Subsection (2)(a) does not apply to directions to the extent that they consist of guidance about any of the following –

(a)

the application or interpretation of law;

(b)

the making of judicial decisions.”

(6)

Subsection (2)(a) does not apply to directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent be given only –

(a)

after consulting the Lord Chancellor, and (b) with the approval of the Lord Chief Justice.”

Pt 1 of Schedule 2 to the 2005 Act provides as follows:-

“Interpretation

1In this Part “designated directions” means directions under another Act which are, by virtue of provision in that Act, to be made or given in accordance with this Part.

The process

2(1)It is for the Lord Chief Justice, or a judicial office holder nominated by the Lord Chief Justice with the agreement of the Lord Chancellor, to make or give designated directions.

(2)

The Lord Chief Justice may nominate a judicial office holder in accordance with sub-paragraph (1)—

(a)

to make or give designated directions generally, or

(b)

to make or give designated directions under a particular enactment.

(3)

In this Part—

(a)

“judicial office holder” has the same meaning as in section 109(4);

(b)

references to the Lord Chief Justice’s nominee, in relation to designated directions, mean a judicial office holder nominated by the Lord Chief Justice under sub-paragraph (1) to make or give those directions.

3(1)The Lord Chief Justice, or his nominee, may make or give designated directions only with the agreement of the Lord Chancellor.

(2)

Sub-paragraph (1) does not apply to designated directions to the extent that they consist of guidance about any of the following—

(a)

the application or interpretation of the law;

(b)

the making of judicial decisions.

(3)

Sub-paragraph (1) does not apply to designated directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be made or given only after consulting the Lord Chancellor.”

There is a useful summary of the effect of the above provisions under para 12-17 in Part 2 of the present Annual Practice in the following terms:-

“. . .Generally, under the process set out in Pt.1 of Sch.2 to the 2005 Act, CPR Practice Directions are made by the Lord Chief Justice. The Lord Chief Justice, with the agreement of the Lord Chancellor, may nominate another judicial office holder to exercise his power to make practice directions. In relation to the making of CPR Practice Directions, with effect from April 3, 2006 the Master of the Rolls was so nominated. (Before that date, the powers of the Master of the Rolls in this respect were confined to the making of directions for the Court of Appeal (Civil Division), and comparable powers for the Queen’s Bench and Chancery Divisions of the High Court were exercised by, respectively, the Lord Chief justice and the Vice-Chancellor.) Subject to certain exceptions, the Lord Chief justice or his nominee may make or give practice directions only with the agreement of the Lord Chancellor. The exceptions are stated in sub-paras (2) and (3) of para.3 in Pt.1 of Sch.2 to the 2005 Act.

As indicated above, practice directions may be made otherwise than under the process set out in Pt.1 of Sch.2 to the 2005 Act. There is nothing in the 1997 Act or the 2005 Act to indicate how or by whom any such alternative process may be used or invoked. However, s.5(2) states that practice directions given otherwise than under the process set out in Pt.1 of Sch.2 to the 2005 Act may not be given without the approval of the Lord Chancellor and the Lord Chief Justice. But the approval of the Lord Chancellor is not required in the circumstances referred to in subs.(5) of s.5. Furthermore, the approval of the Lord Chancellor is not required in the circumstances referred to in subs.(6) of s.5, but in those circumstances the Lord Chancellor must be consulted.”

We would add that it is the custom in the post-2005 Act era, so far as civil proceedings are concerned at least, where the directions are being issued in accordance with section 5(1) and Pt 1 of Schedule 2 to only issue new practice directions or amendments to practice directions after consideration by the Rule Committee. That Committee is chaired by the Master of the Rolls with persons from the Ministry of Justice in attendance and practice directions are then issued by him (as nominee of the Lord Chief Justice) “with the agreement of the Lord Chancellor”.

It is, we think, important to recognise at this stage the wide powers given by the CPR for judges to depart from the rules and practice directions in the exercise of their case management powers in individual cases and to further the overriding objective. CPR1.4 encourages “Active case management” which includes-

“(b)

identifying the issues at an early stage;

(d)

deciding the order in which issues are to be resolved;

(g)

fixing timetables or otherwise controlling the progress of the case;

(l)

giving directions to ensure that the trial of a case proceeds quickly and efficiently.”

CPR 3 gives wide powers of case management. CPR3.1(1) provides:-

“The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.”

and CPR3.2 provides:-

“(2)

Except where these Rules provide otherwise, the court may - (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(m)

take any other step or make any other order for the purpose of managing the case and furthering the over-riding objective.”

The above give wide powers in individual cases but cannot be construed in our view as giving the power to individual judges or any court simply to vary the rules or practice directions generally.

Thus, to summarise the position of a judge in the position of Collins J, we suggest one can at least say the following :-

How far is a practice direction binding? In our view a judge is bound to recognise and has no power to vary or alter any practice directions, whether brought in under the section 5(1) procedure or under the Section 5(2) procedure or indeed any existing practice directions issued pre-2005 Act. There are powers under the rules, as we have already indicated, to apply case management powers in particular cases but otherwise practice directions must, as it seems to us, be binding on the court to which they are directed. The issue of a practice direction is the exercise of an inherent power, even when carried out pursuant to section 5(1) or 5(2). If a Head of Division exercised that inherent power to give directions as to a procedure to be adopted in a particular court as happened before the 2005 Act, and a fortiori if the direction is given with the approval or agreement of the Lord Chief Justice and Lord Chancellor, it cannot be open to another judge of the court to which the practice direction is intended to apply to ignore that practice direction or to suggest in a judgment that a practice direction should no longer be followed in that court.

But what powers does a judge have where there is a gap in the rules and practice directions, at least pending the giving of a practice direction under section 5(1) or section 5(2)? It is in this context that we intend to examine precisely what or what is not a practice direction and in particular whether a judgment could be a practice direction. The point is of course relevant to the scope of section 5 but it is convenient to consider the matter at this stage in the context of what might be perceived as a serious curtailment of the courts’ powers. If, for example, in cases such as Taylor v Lawrence [2003] QB 528 or Buglife – The Invertebrate Conservation Trust, R (on the application of) v Thurrock Thames Gateway Development Corp (Rev 1) [2008] EWCA Civ 1209 the court, having recognised a particular jurisdiction for which the rules and practice directions make no provision, was not free to give directions as to the appropriate procedure to be followed without the approval of the Lord Chief Justice and the Lord Chancellor, it is counter-intuitive to expect a court to have to obtain the approval of the Lord Chancellor or indeed the Lord Chief Justice before its judgment could be effective. We do not consider that, in enacting the 2005 Act, Parliament intended this to happen: see further at [39] below.

Mr Nardell, as advocate to the court, suggested that it was possible to argue that practice directions made under section 5 should be limited to what he termed “rule-referenced” practice directions, i.e. those which not only supplement the CPR but which are referred to in a rule (the kind of practice direction contemplated by the 1997 Act Schedule 1 paragraph 6). Thus, he would argue that the only embargo on any judge issuing a practice direction without the approval of the Lord Chief Justice and the Lord Chancellor relates to such practice directions.

However “practice directions” are defined in section 9 of the 1997 Act and the definition is at least at first sight extremely wide. “Practice Directions” means “directions as to the practice and procedure of any court within the scope of Civil Procedure Rules.” That definition goes far beyond the practice directions referred to in the CPR Rules. How wide however is it? Does it include any guidance whether given by practice statements or judgments?

It does seem that practice notes have, since the 2005 Act came into force, been issued without recourse to the section 5(1) or section 5(2) procedures. If one goes to the courts’ website one finds a direction recently issued by Family Judges on the Midland Circuit providing helpful guidance to litigants and practitioners who appear in those courts. It makes no mention of approval of the Lord Chief Justice or the Lord Chancellor. It is not without irony that the very practice direction relating to skeleton arguments relied on by Mr Maurici on this appeal was issued on 4^th April 2008 by Collins J. That practice direction simply repeats timescales for skeleton arguments for Judicial Review [Judicial Review skeletons are dealt with under CPR 54.15PD]; but it seems to be construed also as applying to Part 8. Neither CPR 8 nor PD 8 deal with the service of skeletons.

Mr Nardell has also collected together a number of Court of Appeal judgments which appear in the Law Reports under the heading “Practice Notes” e.g. Tanfernv Cameron MacDonald [2000] 1 WLR 1311.

In our view Mr Nardell’s argument seeking to limit practice directions to “rule-referenced” practice is unacceptable. That would leave no distinction between section 5(1) and 5(2). It would further have the effect if it were right of enabling different County Courts to make their own practice directions once again without the approval of the Lord Chancellor or the Lord Chief Justice. The introduction of section 74A by the original section 5 of the 1997 Act was intended to prevent that occurring and in our view it could not have been Parliament’s intention to reintroduce that entitlement by repealing section 74A and replacing it with the amended section 5.

The question remains what constitutes a “direction”? Would it, for example, include “Guides” such as the Chancery Guide, the Commercial Court Guide, the Queen’s Bench Guide and the Technology and Construction Court Guide? As far as we can ascertain, none of these were issued under the section 5(1) procedure and none were issued with the approval of the Lord Chancellor under section 5(2). For example, the Commercial Court Guide was approved by the Master of the Rolls and the Lord Chief Justice but not by the Lord Chancellor.

There is, in our view, a distinction between directions, and guidance as to the way in which rules and practice directions will be interpreted. We accept that one object of the practice directions which supplement the rules is to provide guidance to litigants but they also contain directions as to the procedure that should be followed. The nature of the Guides is, or should be, different. They do not, or should not, contain directions; they do, or should, explain inter alia how practice directions apply and are interpreted. Guidance as to how a court interprets and applies practice directions and rules are not in our view themselves practice directions and have rightly not been treated as such. Furthermore Guides as to how the rules and practice directions are operated by the court seem to us something with which the Lord Chancellor should not be concerned. We accept that it could not be said that such Guides in all respects fall within section 5(5)(a) as guidance on the interpretation of the law, but that subsection recognises that there are areas in which the Lord Chancellor has no legitimate interest. Guides as to how practice directions and rules operate is one such area. It follows that since Guides are not practice directions, judgments, in so far as they are providing guidance on how the rules and practice directions work, could not be said to be practice directions.

We now return to consider the situation in which there is a gap in the rules or practice directions. Is a judgment of the court which prescribes or suggests a procedure which should be followed where there is no rule or practice direction covering the position a practice direction such that it cannot be given without the consent of the Lord Chancellor and the Lord Chief Justice? This is a question as to the proper interpretation of “practice directions” in section 9(1).

In Taylor v Lawrence and in Buglife the Court of Appeal were recognising jurisdictions for which the rules and practice directions did not cater. That being so, the court suggested the procedure to be followed. It is not in dispute that before the 2005 Act the court was able to do this in the exercise of its inherent jurisdiction but it is perhaps right to emphasise that where it did so in a judgment it was the court exercising its judicial power, to be contrasted with the issue of a practice direction where the exercise would be of an administrative power. This distinction was made by Lord Denning in Attorney General of Gambia v N’Jie [1961] 617 at 630 where he said “Some of the powers of the Chief Justice are clearly judicial powers, as when he sits in court to decide civil or criminal cases. Others are clearly administrative powers, as when he directs the times at which the offices of the court shall be open, or appoints notaries public, or makes rules of court.” This distinction is important. Challenges to practice directions issued as such could only be made by judicial review. Challenges to judicial decisions as to procedure could only be made by appeal to a higher court. The issue of the true construction of section 9(1) raises the question: would it, since 2005, have been incumbent on the Court of Appeal to obtain the “approval of the Lord Chancellor and the Lord Chief Justice” under section 5(2) before issuing such a judgment?

We accept that at first sight there is much to be said for the view that a judgment which includes directions as to procedure is a ‘practice direction’ within the meaning of section 9(1). This literal interpretation is adopted by Stanley Burnton LJ. But we cannot accept that this is what Parliament intended when it enacted the 2005 Act. We start from the position that it was unlikely to have been intended by Parliament to require judges exercising their judicial power to obtain the consent of the Lord Chancellor or the Lord Chief Justice before handing down any judgment. The Lord Chancellor is no longer a member of the judiciary but, even more fundamentally, to require the approval by any person outside the judge or judges hearing the case of a judgment before it can be delivered, interferes with the independence of the judge or judges hearing the case. A judge may feel he or she would like to consult a Head of Division if he or she is about to say something that affects matters beyond the particular case. But it is unlikely that Parliament had in mind that a judge, if he or she were delivering a judgment, would be obliged to say “before this judgment can be effective, we must seek the approval of the Lord Chancellor and the Lord Chief Justice”. Parliament’s understanding of, and respect for, the independence of the judiciary is reflected in section 5(5)(a) and (b) of the 2005 Act.

An answer, we accept, to paragraph 39 could simply be to say that the court has no power at all to prescribe or suggest a procedure where some new jurisdiction such as Taylor v Lawrence is recognised and the rules and practice directions in place at the time do not deal with it. Why, it could be said, should not the court indicate that a practice direction will be issued once the Lord Chancellor and the Lord Chief Justice have approved?

We do not consider, however, that Parliament intended to fetter the courts’ powers to that extent. In our view in its definition of “practice directions” Parliament simply did not intend to include judgments. The legislators would have recognised that the courts could not vary the rules because they have the force of delegated legislation. They would have recognised that the courts could not vary practice directions issued under section 5 by a judgment. They would thus have appreciated that the only occasion for giving some “directions” as to the appropriate procedure to be followed would be in “gap” cases.

They would also have recognised that once the judgment had been handed down the procedure suggested could be examined by the Rule Committee and either approved and encompassed into a rule or practice direction or varied as the case might be. Taylor v Lawrence is now covered by the CPR. Protective cost orders have yet to be considered but no doubt will be. In the meanwhile it would be recognised by Parliament that it would be in the public interest that the court acting in its judicial capacity should be able to provide guidance to those who might want to apply for such orders.

The background to the 2005 Act is that, in the exercise of the inherent jurisdiction of the court, a judge always had the power to include in a judgment procedural directions of general application. That power is not subject to the constraints referred to in [41] above.

In our judgment, clear language would have been needed (a) to abrogate this power altogether and, in particular, in gap cases and (b) to require the approval of the Lord Chancellor to the exercise of the power. That clear language is not to be found in the Statute. The definition of ‘practice directions’ in section 9(1) is not enough. The words “directions as to the practice and procedure of any court within the scope of Civil Procedure Rules” are at least capable of referring only to directions which are issued by “practice directions” as such i.e. by so-called practice directions of the kind which before the 2005 Act were issued by the courts acting in an administrative capacity.

Stanley Burnton LJ has raised the spectre of the possibility of local practices in the County Court. We accept that these would be undesirable, but in our view this is unlikely to be a problem in practice. It will be a rarity for a circuit judge sitting in the County Court to be confronted with a gap case and there should usually be no need for the judge to make directions of general application.

Against the above background we return to the judgment of Collins J. The real question is whether he was delivering a judgment which was (i) providing guidance on interpretation of the rules and practice directions (which he could do) or (ii) was prescribing procedure in a “gap” case (which he could do) or (iii) whether he was seeking to vary the rules and/or PD8 (which he could not do). The relevant paragraph of Part 8 is in the following terms so far as relevant:

“8.9

Where the Part 8 procedure is followed –

(a)

provision is made in this Part for the matters which must be stated in the claim form and the defendant is not required to file a defence and therefore -

(i)

Part 16 (statements of case) does not apply;

(ii)

Part 15 (defence) does not apply […]” (emphasis added)

For the avoidance of doubt, CPR 8.9 is reinforced by CPR 15.1, which provides that Part 15 (Defence and Reply):

“[…] does not apply where the claimant uses the procedure set out in Part 8 […]”

Similarly, CPR 16.1 provides that Part 16 (Statements of Case) does not apply to Part 8 claims.

CPR 8.1(6) provides that “A … practice direction may, in relation to a specified type of proceedings - (a) require or permit the use of the Part 8 procedure; and (b) disapply or modify any of the rules set out in this Part as they apply to those proceedings”. Thus Part 8 is one of those rules which could be said to give statutory force to its accompanying practice direction.

In addition to no requirement to serve a defence under CPR Part 8 there is no requirement to file any other document similar to a defence such as a summary of grounds for contesting the claim as is required in judicial review proceedings by CPR 54.8(4)(a). The judicial review procedure is governed by CPR Part 54 and it is of some significance that CPR 54.1(2)(e) provides that “the judicial review procedure” means “the Part 8 procedure as modified by this Section”. The modifications made to the Part 8 procedure as applied to judicial review claims include: (i) a requirement for permission for a claim to proceed (see CPR 54.4); (ii) service and filing by defendants pre-permission of summary grounds of resistance with the acknowledgement of service (see CPR 54.8(4)(a)); and (iii) the service and filing by defendants of “detailed grounds for contesting the claim” following the grant of permission (see CPR 54.14(1)(a).

The CPR Part 8 practice direction at 8PD.22 contains certain modifications to CPR Part 8 in respect of claims under s.288 of the 1990 Act and other similar types of proceedings. Those modifications include specific provisions on the evidence to be provided by claimants and defendants. It makes no provision for the filing of any defence or other similar document such as summary grounds for contesting the claim or even a skeleton argument. 8PD.22 provides as follows:

Application to quash certain orders, schemes, etc

22.1

This paragraph applies where the High Court has jurisdiction under any enactment, on the application of any person to quash or prohibit any –

(1)

order, scheme, certificate or plan of;

(2)

amendment or approval of a plan of;

(3)

decision of;

(4)

action on the part of,

a Minister or government department.

…

22.7

Evidence at the hearing of an application under this paragraph is by witness statement.

22.8

The applicant must –

(1)

file a witness statement in support of the application in the Administrative Court within 14 days after service of the claim form; and

(2)

serve a copy of the witness statement and of any exhibit on the respondent at the time of filing.

22.9

The respondent must –

(1)

file any witness statement in opposition to the application in the Administrative Court within 21 days after service on him of the applicant's witness statement; and

(2)

serve a copy of his witness statement and of any exhibit on the applicant at the time of filing …”

One point which does not ultimately impinge on the decision in this case, but with which it is convenient to deal at this stage in order to make sense of Collins J’s reasoning, is the question whether an Acknowledgement of Service is required in a Part 8 case under s.287 and 288 of the 1990 Act. In his judgment in this case Collins J said that Part 8 claims including those made under ss.287 and 288 of the 1990 Act require a defendant to file an Acknowledgement of Service: see paragraphs 5 and 20 of the judgment. In so saying Collins J was relying on the rules which provide by CPR8.3(1) that a defendant to a Part 8 claim must serve an Acknowledgment of Service not more than 14 days after service of the claim form. Such a defendant must also by virtue of CPR 8.5(3) file any written evidence he intends to rely on when he files his Acknowledgement of Service: see paragraphs 5 and 6 of the judgment of Collins J.

The Secretary of State argued before Collins J that claims governed by 8PD.22 did not require the defendant to serve an acknowledgement of service in respect of section 287 and 288 applications.

The argument was that prior to the changes made in April 2007 the CPR Part 8 Practice Direction B expressly disapplied the requirement for an acknowledgment of service in respect of s. 287 and 288 applications and indeed other applications and appeals to the High Court seeking the quashing of certain orders, schemes etc. and which were then governed by RSC Ord. 94 r. 1(2). The argument thus continued that, since in 8PD 22 there is no mention of an acknowledgement of service and the timing as provided for in those paragraphs does not marry with CPR Part 8.5, the intention must have been to continue to disapply the need for an acknowledgement of service.

In our view you would need much clearer wording in the practice direction to disapply the need for an acknowledgement of service. Subparagraphs 22.8 and 22.9 are limited to varying the timetable for the service of evidence and make sense in being so limited. If thus and in so far as there has been some doubt expressed on this issue, although it is of no real significance to this appeal, we would clarify the position in favour of the view taken by Collins J.

We return to the judgment of Collins J but explain first how he came to give the judgment he did in this case. The application in this case under Part 8 was made on 27^th June 2007. Both the Secretary of State and the Herefordshire District Council (the local authority) were defendants. The local authority, although not required to by the rules or practice direction, put in a document setting out their grounds of resistance in July 2007 [see page 207 of the bundle]. No application was made by those representing Bovale to seek an order that the Secretary of State should also put in grounds of resistance.

On 24^th July 2008 Collins J made a ruling in Dinedor Hill Action Association v Herefordshire District Council [2008] EWHC 1741 (Admin). In that case he commented on what he considered to be an unsatisfactory state of affairs although, as he was to admit in his judgment in this case, he did not have the specific provisions of Part 8 in mind. Dinedorwas an application under s. 287 of the 1990 Act seeking to quash parts of the Herefordshire Unitary Development Plan. In all material regards the relevant parts of CPR Part 8 governing s. 287 claims are identical to those governing s.288 claims. In Dinedorthe defendant local planning authority adduced late evidence and Collins J said as follows:

“32.

The failure to produce this relevant material was compounded by the failure of the defendant to produce its evidence until after 5 June 2008, albeit the claim was lodged in May 2007. This was only at most 3 weeks before the hearing. It is unfortunate that the CPR do not contain any timetable for the lodging of evidence or grounds to resist the claim by either the defendant or any interested party.[NOTE This is in fact not accurate as the quotations from 8PD 22 above show ] This has meant in too many cases that such evidence and grounds has been left very much to the last minute. This is a thoroughly unsatisfactory state of affairs and is not compliant with CPR 1.1(2).

33.

The court’s case management powers, in particular those contained in CPR 3.1(2)(m), enable the court to make any orders to achieve a just result. When initiating a claim under ss.287 or 288 or their successors, the claimant should, if he considers it appropriate, apply in the claim for an order for directions as to the filing of any evidence and defence by the defendant or any interested party. I recognise that there is no need for the defendant, who will normally be a planning authority or the Secretary of State, to be given advance notice of any claim; indeed, the requirement that it be brought within 6 weeks will often make such advance notice somewhat impractical. Thus a somewhat longer period than is appropriate in judicial review claims, where there will usually have been advance notice, an Acknowledgement of Service and a lapse of time before permission is granted so that the defendant or interested party will have had time to prepare evidence and detailed grounds of defence, is required.

34.

I am aware that the Treasury Solicitor needs some time to consider a decision letter (which may be lengthy and complicated) and must seek instructions from the inspector before advising the Secretary of State whether the claim should be conceded or resisted. Equally, no doubt, planning authorities will have to go through the same process with their legal advisors. Accordingly, the general rule will be if directions are sought that evidence and at least summary grounds of defence should be lodged with 10 weeks. If a shorter period is sought, it must be requested specifically and good reasons given for the shorter time. Equally, if the defendant or interested part wants a longer time, they should make a specific request, again giving good reasons for it.”

Between the hearing of argument in Dinedor and handing down his judgment, Collins J communicated with PEBA (the Specialist Bar Association for Planning Environment and Local Government) requesting that a message should be conveyed to members of the Planning Bar in the following terms:-

“Claimants in T&CPA 1990 s. 287 and 288 claims should, in appropriate cases, apply in their Claim for Directions as to exchange of evidence and/or summary grounds of Defence so as to ensure that the ambit of the dispute is known in advance, so that full evidence is exchanged and so that Claimants are aware of the Defence in advance of filing Skeletons.”

That communication, as well intentioned as it was, seems to us an inappropriate way of seeking to communicate some change in procedure whether the arguments in this case are good or bad. A private communication to one group of users of the court is simply inappropriate.

Prompted by that e-mail, on 18^th August 2008 those representing Bovale made an application for an order that the Secretary of State file and serve “summary grounds of Defence and/or evidence upon which it intends to rely at the hearing of the section 288 application”.

Deputy Master Knapman on 20 August 2008, without any hearing, made an order in the following terms:

“It is ordered that:

The first defendant file and serve any evidence upon which she intends to rely by 4pm on 5 September 2008;

If the first defendant intends to rely upon alternative or additional grounds to those lodged by the second defendant she shall file and serve those alternative or additional grounds for resistance by 4pm on 5 September …”

By an application notice dated 20 August 2008 the Treasury Solicitor’s Department on behalf of the Secretary of State applied to set aside that order. The application came before Collins J on 1 September 2008. It is accepted that the application should have been in the form of an appeal from the decision of the Deputy Master and that Collins J was right to treat the application as if it were an appeal: see paragraph 46 of his judgment.

Collins J began his judgment by considering the position in relation to the order of the Deputy Master in so far as it related to the service of evidence by the Secretary of State. The Secretary of State had indicated that she was not intending to serve evidence in this case and so Collins J accepted there was no need to maintain that part of the order (see paragraph 18) but he went to consider the question of the service of evidence in s.288 and other similar proceedings generally.

He started with the question of the timing of service of evidence specifically dealt with in 8PD paragraph 22 as set out above with which his general direction in Dinedor was inconsistent:-

“13.

I confess that when I dealt with this, as I did in my judgment in Dinedor Hill Action Association v Herefordshire District Council [2008] EWHC 1741 (Admin), I had not had my attention drawn specifically to Part 8 and so I did not have in mind the requirements to serve evidence within a specified short period.”

Collins J continued at paragraph 17 as follows:-

“ … The difficulty, frankly, is that those responsible for Part 8 and the Practice Direction have failed properly to consider the special needs of the Administrative Court and the parties to claims such as this. I am afraid I am firmly of the view that the Rules and the Practice Direction are inappropriate, and do not satisfactorily deal with the situation in these cases”.

Collins J thus took the view that his “standard directions” (see paragraph 12) in Dinedorallowing for 10 weeks for evidence from a defendant should prevail over the contrary provisions in the 8PD. Collins J. then turned to that part of the Deputy Master’s order which required “alternative or additional grounds of resistance” to be lodged. The Secretary of State argued (see paragraph 22 of the judgment) that:

“[t]he obligation in the order to file alternative or additional grounds of resistance to those lodged by the second respondent is … although the language may not be defence, in reality a defence. However one dresses it up, whether one calls it "summary grounds", whether one calls it "grounds for resistance", in reality what it doing is to do what Rule 8.9(a) says need not be done; that is to say, require a form of what is equivalent to a defence to be filed”.

Collins J rejected these arguments. He began by referring to the relevant provisions in CPR Part 8 (see above) and said:

“ 20. … all that the Acknowledgement of Service has to do is to indicate whether the defendant contests the claim and, if the defendant seeks a different remedy, to set out in the claim form what that remedy is. That will, I would have thought, not be likely to apply in claims under sections 287 or 288.

21.

With respect to those responsible for Part 8, I am bound to say that I find it difficult to understand why no more is required than that in an Acknowledgement of Service before this court. Indeed, I have some difficulty in understanding why no defence or no indication of the nature of any defence is required in cases generally …

22 The obligation in the order to file alternative or additional grounds of resistance to those lodged by the second respondent is, Mr Blundell [for the Secretary of State] submits, although the language may not be defence, in reality a defence. However one dresses it up, whether one calls it "summary grounds", whether one calls it "grounds for resistance", in reality what it is doing is to do what Rule 8.9(a) says need not be done; that is to say, require a form of what is equivalent to a defence to be filed.

23.

The obligation under Part 54 in judicial review cases is that a defendant's or interested party's Acknowledgement of Service should "set out a summary of his grounds" for contesting the claim. That is the wording used. It seems to me that, on its true construction, Rule 8.9(a) is indeed referring to a defence and a defence is, as Rule 8.9(a)(ii) makes clear, a defence which would otherwise be covered by Part 15. Part 15 sets out the detailed requirements that are needed for a defence. It is not suggested that that be filed, nor would it in my judgment be appropriate for the court to be faced with any application for any further particulars of whatever is lodged. But what is required, in my view, and what should be required is at the very least an indication by the defendant of the grounds of resistance. It may in an individual case be that the defendant says that a particular ground is accepted, but even if established it could not make any difference to the decision or that there was no prejudice to the claimant in the decision that was reached. However, in any event it is surely desirable and sensible that the explanation for the decision to resist is set out in as short a form as may be appropriate, at as early a stage as is reasonably possible, so that the claimant, and indeed all parties, can focus on the arguments that are going to be material before the court and the court is then assisted by knowing what the position is in that regard and in assessing how long the case is likely to last, and accordingly can exercise its powers in an appropriate and most cost effective manner.

…

25.

As I have said, in my judgment Rule 8.9 is not, for the reasons I have indicated, a Rule which provides otherwise because what Rule 8.9 is considering is a formal defence, not an indication of the grounds for resisting the claim that is being made.

26.

Thus, I am against the defendant in respect of the argument that the court has no power under the Rules to give directions as to the service of such a document. In my judgment, there is every good reason why that requirement should be made.

27.

Mr Blundell says, "If nothing is said, then it can be assumed that the Secretary of State is going to dispute all the grounds that are made." That is an assumption that can I suppose be made, but it is a somewhat unhelpful approach. One may go to the grounds raised in this case, just as an example. What is said is that the inspector, for example, failed to understand or even consider the agreed existence of currently available employment floor space and that he failed to understand or take into account the applicant's evidence as to the crucial distinction between costs and so on. It surely would be helpful, if necessary in one sentence, for an indication to be given as to why that is wrong because, for example, in paragraph whatever it is of his decision the inspector clearly does deal with this matter and paragraph whatever it is indicates that he clearly had in mind the relevant matters. This will be able to be known from discussion with the inspector, which one would expect to take place when instructions are taken by the Treasury Solicitor. I am only giving this as an example. It seems to me that that sort of indication would be of obvious value because at least then everyone would know where the battle lines are drawn and it might save considerable effort and time in dealing with every possible construction of a particular matter. Obviously, each case will depend upon its own facts or, perhaps I should say, on its own assertions of unlawfulness. But as a general principle I am entirely satisfied that there is a need for orders such as this one made by Deputy Master Knapman as a general proposition and that there is power in this court to make them”.

Collins J then indicated that he was of the view that “grounds of resistance” could be provided contemporaneously with evidence i.e. within 10 weeks of the lodging of the claim as per his “standard directions” in Dinedor: see paragraph 32 of the judgment. In response the Secretary of State argued that “there will be difficulties and that it would be inappropriate for [the Court] to make, as it were, a direction without enabling the Treasury Solicitor, and indeed all other interested parties, to make specific representations” and “that this is a matter that ought to be dealt with through the Rules Committee rather than by an individual decision by the lead judge of [the Administrative Court]” (see paragraph 33 of the judgment). Collins J said:

“33.

… I recognise the force of that and generally speaking, of course, all matters of practice ideally should be dealt with by the Rules Committee. But having said that, one recognises that it sometimes takes rather longer than one would hope for the matters to be dealt with and that the Administrative Court in a number of respects has its own special requirements, which I regret to say have not always been properly taken on board by the Rules and which are not reflected in the present Part 8 and the Practice Direction under it.

34.

What I propose to do in those circumstances is to indicate that there will be an expectation until the matter is dealt with through representations and the representations are considered, that the defendants ought to think in terms of serving grounds for resistance, however short, within the same period of ten weeks. If they do not and there is a good reason for the claimants to think that they are likely to be prejudiced or there is a real requirement in the interests of proper case management for such a service and it is not done within ten weeks, then a specific application can be made to the court and the court will if necessary make such an order. In the meantime I shall make arrangements for representations to be made by the Treasury Solicitor, by someone who is enabled to put forward the interests of local planning authorities, by someone who is able to do the same on behalf of developers, who are obviously affected, and perhaps by a representative of the planning Bar as well …

38.

I shall also take steps to have this matter put before the Rules Committee, but it seems sensible to await the representations so that one knows what can be put to the Rules Committee, so that they can avoid taking extra time in finding out what the parties' views are.”

On the facts of the particular case however Collins J did not in fact maintain the Deputy Master’s order for the filing of grounds of resistance because the substantive s.288 hearing was by that time only a few weeks away and, following his April Practice Direction, skeleton arguments were in any event due very shortly. The learned judge, however, reversed the order of skeleton arguments requiring the Secretary of State to file hers first. Collins J made the following further observations:-

“40.

It seems to me that where the defendant chooses not to put in any grounds for resisting and thus one assumes that the grounds as set out in the claim form represent the way in which it is to be put by the claimant, it must be for the defendant to put in the first skeleton. There is no point, as it seems to me, in requiring the claimant to put in a skeleton first. The claim form should and does set out, albeit it may be said in rather short form, the grounds upon which the claimant relies. Accordingly, I take the view that in this case, and I suspect in many cases, the obligation will be for the defendant to put in the first skeleton.

..

45.

I should add that even if I were wrong about the court's power and Mr Blundell's argument in relation to no requirement for a defence were accepted, there is nothing in the Rules that prevents defendants from putting in grounds for resistance and in my view there is every reason why they should do so, voluntarily if necessary. The sanction if they do not may be that if as a result extra costs have been incurred because of a last minute indication as to what actually the issues were, the court has power under the costs rules to make orders which reflect that. It may well be that a defendant who does not voluntarily put in an appropriate case an indication of what the grounds of resistance are may find himself deprived, if he succeeds, of some part of his costs or ordered to pay extra costs in given circumstances.”

As we have previously made clear the powers of the court to make orders in individual cases are very wide, but a judge is not free, and indeed has never been free once rules were made by delegated legislation, to announce that without regard to the particular circumstances of individual cases, the court now intends generally to disapply or vary the rules. Nor is he free to announce that he will simply disapply or vary a practice direction, particularly one issued following the section 5(1) procedure [the relevant version of 8PD had come into force on April 6^th 2007 – see note 8.0.4 and we assume was produced under that procedure]. Furthermore a judge is not free to seek to achieve that result by suggesting that, if parties do not voluntarily disapply the rules or the Practice Direction, cost consequences will follow. However well intentioned, it seems to us the judge, in purporting by his judgment to change the Rules under Part 8 and the Practice Direction generally, was doing something he was not entitled to do.

It is argued by Mr Nardell, seeking to defend Collins J’s position, that the judge’s case management powers would have entitled him to make an order for grounds of resistance to be served in a particular case, indeed in any case, and thus why should he not make clear that that was something that the court was going to do in the future in all cases of the same category? The answer to that argument seems to us to be that parties are entitled to start from the position that the relevant rules and practice directions will apply to their case; the onus will be on the party seeking a different form of process and indeed on the judge who may of his own motion wish to exercise his case management powers in a particular case to demonstrate that the case is outside the norm. What Collins J was not entitled to do was to put the onus entirely the other way round and impose an onus on a defendant to persuade the court that some procedure inconsistent with the rules and practice directions should not be followed. The right way to alter the rules is through the Rule Committee and the right way to alter a practice direction is under the Section 5 procedure.

A difficult question arises in relation to Collins J’s own practice direction of April 2005 relating to skeleton arguments and indeed Mr Maurici has not attacked that practice direction seeking, in fact, to rely on it. It could be said that, insofar as that practice direction simply emphasised the timescale for skeletons under Part 54 it was offering no more than guidance as to how the rules were to be interpreted by the court. We have serious doubts as to whether it was simply filling a gap so far as Part 8 was concerned, because an argument that there was a deliberate difference between Part 8 and Part 54 in relation to skeleton arguments would seem to be a strong one. It thus, in our view, probably needed the approval of the Lord Chief Justice and the Lord Chancellor. Whether that is right or not, what Collins J was not free to do by his judgment in this case was to seek to enforce his rule change by ordering a reversal of the sequence of skeleton arguments and costs consequences if defendants did not voluntarily do that which his rule change would have required.

This was not a “gap” case. Collins J’s judgment did not simply provide guidance as to the interpretation and application of the rules and practice directions; it attempted to vary the rules and practice directions and he had no power to do that.

It will be noted that we have expressed no views on whether what Collins J was seeking to do was likely to help in the management of cases in the Administrative Court. There appear to be two views on that and the correct process is to have the matters considered in accordance with the procedure now adopted for the issuing of practice directions under section 5(1) allowing for full consultation with all those affected.

We would therefore allow this appeal.

I agree that the appeal should be allowed for the reasons given by Lord Justice Waller and Lord Justice Dyson but also because in my judgment Collins J’s judgment included a practice direction within the meaning of section 5 of the 1997 Act as amended which did not have the approval of the Lord Chancellor and the Lord Chief Justice. I have the misfortune to disagree with Lord Justices Waller and Dyson as to the residual power of the courts to issue practice directions in a judgment in a “gap” case. Put shortly, in my judgment a practice direction contained in a judgment is nonetheless a practice direction within the meaning of section 5 of the Civil Procedure Act 1997, and therefore, subject to the exception in subsection (5), it requires the approval of the Lord Chancellor and the Lord Chief Justice.

What, then, is a practice direction within the meaning of the Act? In my judgment, this must depend on its content rather than the occasion on which or the form in which it is issued.

It is clear that section 5 has no application to judgments which do not contain a practice direction: it does not purport to do so. A judgment is essentially a reasoned decision on the procedural or substantive issues in the particular case or cases before the court. It is an exercise of the judicial function. Before the intervention of statute, the issuing of a practice direction was also an exercise of the judicial function, since it was the exercise of an inherent power of the judiciary. But, as Lord Justice Waller and Lord Justice Dyson point out in paragraph 38 practice directions were issued in the exercise of an administrative power of the judiciary. It is this administrative power that is restricted by section 5.

What then is a practice direction within the meaning of the statute? As my Lords point out, the definition in section 9 of the 1997 Act is unhelpful. In my judgment, notwithstanding the reference to “guidance” in subsection (5), “direction” in the statute is used in the sense of, to use one of the definitions in the Oxford English Dictionary, “an instruction how to proceed or act; an order to be carried out, a precept”. In other words, it is or includes mandatory provisions. That they may be mandatory appears from the word “direction” and from paragraph 6 of Schedule 1 to the 1997 Act, which permits any matter that could be provided for in the CPR to be provided for by directions. If a practice direction is not complied with, the litigant may suffer a sanction, by way of costs or the disallowance of a procedural step taken in breach of the direction. Thus, in Taylor v Laurence, Lord Woolf CJ, at [56], issued a direction:

“The residual jurisdiction which we have been considering is one which should only be exercised with the permission of this court. Accordingly a party seeking to reopen a decision of this court, whether refusing permission to appeal or dismissing a substantive appeal, must apply in writing for permission to do so. The application will then be considered on paper and only allowed to proceed if after the paper application is considered this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application. The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end.”

The italics are mine. The direction was clearly mandatory. Taylor v Laurence was of course decided before the amendment of the 1997 Act by the Constitutional Reform Act 2005, and Lord Woolf CJ was able to issue that direction without obtaining the approval of the Lord Chancellor. R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 [2005] 1 WLR 2600 was similarly decided before the coming into force of the 2005 Act.

This does not mean that the court, in a judgment, may not interpret the provisions of the CPR or of a practice direction, or make a suggestion or give advice or guidance concerning practice and procedure to be followed in other cases in the future; and I accept that the line between a mandatory direction and a judicial suggestion or judicial guidance may be fine. But it is nonetheless discernible. In Buglife, the court said, at [33]:

… It is of great importance that issues relating to permission to appeal and to a PCO and a consequent cost capping order or orders should all be considered at the same time and on paper. This should avoid further hearings of the kind which has taken place here. Such further hearings should be very rare.

This was not a direction: compare it with the above citation from Taylor v Lawrence. Directions had, however, been given by the Court of Appeal in the earlier case of R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749 at [48] and [49]. The judgment of the Court of Appeal in that case does not refer to section 5 of the 1997 Act, and I assume that it was not brought to their attention.

Clearly, also, the court can give directions as to the procedure to be followed in the case before it, and those directions may depart from the provisions of the CPR or practice directions generally applicable. What in my judgment it cannot do, however, without the approval of the Lord Chief Justice and the Lord Chancellor, is give a mandatory direction as to future practice and procedure in cases that are not before the court.

I fully accept that the statutory restriction is inconvenient in a case in which the court wishes to make provision for the practice to be followed in a new area which is not currently the specific subject of the CPR or a practice direction. Regrettably, the Lord Chancellor chose not to be represented before us, and no explanation has been put forward for his retention of his power in relation to practice directions now that he no longer has any judicial functions. However, the exclusion of directions given in a judgment in a gap case from the restriction in section 5 is, in my respectful opinion, not justified by the statutory wording. It would mean, presumably, that any judge of a county court could issue a lawful practice direction in a judgment on any matter that is not already the subject of a provision of the CPR or a duly approved practice direction. This would permit the variation of local practices that the un-amended 1997 Act was clearly intended to prohibit. It would mean that a direction given in a judgment is not a practice direction, whereas the same text issued as approved by the Lord Chancellor and the Lord Chief Justice is a practice direction. This is not permitted by the statutory words.