Search
C.S. Lewis said: “You can never get a cup of tea large enough or a book long enough to suit me.”
It is conceivable that Mr Lewis was not referring to the new, 225-page Admin Court Guide, nor trying to maintain work/life balance as a public lawyer.
I’ve compared the new Admin Court Guide (seventh edition, October 2022) with its predecessor to see what’s new, just in case you don’t find the time this week.
What are the 10 most important updates in the Admin Court Guide 2022?
Section 7.9 of the Guide has been updated in light of R (Good Law Project Ltd) v Secretary of State for Health and Social Care) [2022] EWCA Civ 355. This judgment clarified that CPR 7.6 does not apply to extensions of time for service of a judicial review claim form, but its principles should be followed on an application under CPR 3.1(2)(a) to extend time for service of a judicial review claim. Unless a claimant had taken all reasonable steps to comply with CPR 54.7 but had been unable to do so, time for service should not be extended.
This Good Law Project case makes for important reading as a cautionary tale.
Section 12.3 has been updated to reflect the new s. 29A(1) of the Senior Courts Act 1981, as inserted by s. 1 of the Judicial Review and Courts Act 2022.
It now clarifies that “[i]f proceedings commenced on or after 14 July 2022, a quashing order may include provision (a) for the quashing not to take effect until a date specified in the order, or (b) removing or limiting any retrospective effect to the quashing.”
See further section 12.3.7 for the factors to which the Court must have regard when deciding whether to make such an order.
Section 11.6 now reflects the strongly-worded warning about embargoed judgments given in R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, [25]-[28].
In particular, we are now warned:
Back in 2021, the Guide stated that “in some cases, a claimant whose legal rights and obligations are not affected (such as an association or non-governmental organisation), but has a particular expertise in the subject matter of the claim, may be considered to have sufficient standing if the claim is brought in the public interest.” (6.3.2.5)
To this has now been added the following, to reflect R (Good Law Project) v Prime Minister [2022] EWHC 298 (Admin) [53] – [59]: “An association or non-governmental organisation claiming standing on this basis will normally have to demonstrate genuine involvement in a specific subject area. The court will not necessarily accept that a corporate entity with very widely drawn objects will have standing to pursue claims in every case whose subject matter falls within those objects.” (6.3.2.4)
Back in 2021, the Admin Court Guide’s position was: “The CPR and Practice Directions do not make provision for the claimant to respond to the Acknowledgment of Service during the paper application process. Replies are rarely necessary and are not encouraged. The ACO will not delay consideration of permission on the basis that the claimant wishes to reply. Any reply received before a case is sent to a judge to consider permission will be put before the judge. Whether to take it into account it is a matter for the judge to decide.” (8.5.1)
The tone of the 2022 Guide is much more permissive: “If the claimant considers that there is something in the Acknowledgement of Service to which a reply is essential, a document should be drafted which is concise and confined to true reply points. This should be accompanied by an application for permission to file a reply and should be filed promptly. Any reply received before the case is sent to a judge to consider permission will be put before the judge. Whether to take it into account it is a matter for the judge to decide.” (8.5.1)
Claimants’ right of reply at an oral renewal hearing has been given a boost. In 2021, the Guide said that claimants would “usually” be given a right to reply. Now the Guide promises at 9.6.3.4 that they will be “given the opportunity to reply briefly”.
This section has been updated in light of s. 2 of the Judicial Review and Courts Act 2022, which inserted s. 11A(1)-(4) into the Tribunals, Courts and Enforcement Act 2007.
9.7.2.2 now states that: “Where the Upper Tribunal’s decision was taken on or after 14 July 2022, parties should bear in mind in addition that the High Court’s judicial review jurisdiction is ousted except ‘so far as the decision involves or gives rise to any question as to whether— (a) the Upper Tribunal has or had a valid application before it under section 11(4)(b), (b) the Upper Tribunal is or was properly constituted for the purpose of dealing with the application, or (c) the Upper Tribunal is acting or has acted—(i) in bad faith, or (ii) in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.’”
10.1.4.4. of the 2022 Guide highlights that previous versions of the practice directions required skeleton arguments to be filed 21 working days before the date of the hearing. The new CPR 54A PD para 14.5 refers simply to “21 days before the date of the hearing”. This means “calendar days”: see CPR 2.8.
The 2022 Guide contains the following considerations for defendants for the first time: “If all relevant matters have already been addressed in the Summary Grounds, a party may elect not to file separate Detailed Grounds and instead inform the court and the parties that the Summary Grounds are to stand as Detailed Grounds. However, before doing so, the party should consider carefully whether the material in the Summary Grounds is sufficient to discharge the duty of candour and cooperation with the court. In this regard, it is important to note that what is required to discharge that duty at the substantive stage may be more extensive than what is required before permission has been granted (see para 15.3.2 of this Guide).” (10.1.4.3)
The 2022 Guide clarifies a previously murky area, namely which form to use for applications once a claim is issued. The Guide states at 13.7.1 that “[a]n application for directions or an interim order can be made at any time after commencement of the claim.” It then clarifies at 13.7.2 “[t]o make such an application the application must be filed with the ACO on an application notice. If the application needs to be decided within seven days, it should be made on Form N463. Any other application should be made on Form N244”.
If you would like a PDF which compares the full text of the 2022 Guide with its predecessor, email iproud@monckton.com.
Imogen Proud is a barrister specialising in public law.
Imogen welcomes suggestions for future topics. To request that a topic be covered in a future instalment, please email your request to practicalpointers@gmail.com.