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Judges' powers to fill gaps

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Judges' power to fill gaps in Practice Directions

The recent Court of Appeal case of Bovale Ltd v Secretary of State for Communities and Local Government and another [2008] EWHC 2143 held that while a judge had no power to alter the Civil Procedure Rules (CPR) or vary any practice direction, either by a judgment or practice direction, he did have an inherent jurisdiction to include procedural directions of a general application where there was a gap in the CPR or in the practice directions.

Background to the Case

The claim was brought by Bovale Ltd, a property developer, to quash a decision by the secretary of state to uphold refusal of planning permission by Herefordshire District Council.

Relevant legislation

Section 5 of the Civil Procedure Act 1997 provides: ‘(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'

Section 9 of the Civil Procedure Act 1997 provides: ‘(2) Practice directions means directions as to the practice and procedure of any court within the scope of Civil Procedure Rules.'

Facts of the Case

The judge in the case 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 secretary of state contended that the judgment was, in effect, a practice direction as per sections 5 and 9 of the Civil Procedure Act 1997 and thus ultra vires, as it had been made without the consent of either the Lord Chief Justice or the Lord Chancellor.

Appeal

On appeal Lord Justice Waller said that a judge would be free to exercise case management powers under CPR 3 and noted in particular that CPR 1.4 encourages "active case management", however a judge could not simply alter the CPR or practice directions with general effect.

The Court also considered what powers a judge had where there was a gap in the CPR and/or practice directions. Was a judgment of the Court which prescribed or suggested a procedure which should be followed where there was no rule or practice direction covering the position a practice direction such that it could not be given without the consent of the Lord Chancellor or the Lord Chief Justice?

The Court considered that this was a question as to the proper interpretation of "practice directions" under section 9(1) of the Civil Procedure Act 1997. The Court accepted that at first sight, there was "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)". However, it was totally impracticable that a judge, before delivering judgment, would have to say that "before this judgment can be effective, we must seek the approval of the Lord Chancellor and the Lord Chief Justice". In the Court's view, Parliament simply did not intend to include judgments in its definition of "practice directions". They said that the only occasion where directions could be expected to be given was in "gap" cases i.e. where no practice direction covered the scenario. If this wasn't the case, the Court would have expected Parliament to make this evident using clear language abrogating the power altogether.

The Court then looked at the facts of Bovale Ltd to ascertain whether the judge was correct in giving directions based on this particular case falling within the "gap" case bracket. The Court said that Bovale Ltd was not a "gap" case. The judgment in that case 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 the judge had no power to do that.

This case shows that where there is a gap in the CPR or practice directions, a judge has inherent jurisdiction to include procedural directions of general application in his judgment.

 If you want to discuss this or other aspects of the CPR, please contact one of the CDRU team who will be more than happy to assist.

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