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

Rules of court have the force of delegated legislation. A judge may use case-management powers to depart from rules or practice directions in an individual case, but cannot vary them generally or reverse the burden by requiring parties to justify adherence to them.

A practice direction binds the court to which it applies and may be altered only through the authorised statutory procedure. The majority held that a judgment may nevertheless provide procedural guidance in an area left uncovered by rules or practice directions. Guidance explaining how existing rules operate is distinct from a direction prescribing mandatory procedure.

The Secretary of State appealed from the decision of Collins J in [2008] EWHC 2143 (Admin). In proceedings to quash a planning decision under section 288 of the Town and Country Planning Act 1990, the judge had sought to establish generally applicable procedures for serving evidence and grounds of resistance. He also proposed costs consequences and reversal of the usual sequence for skeleton arguments where defendants did not comply.

The appeal concerned whether an individual judge could establish those procedures consistently with the Civil Procedure Rules 1998 and section 5 of the Civil Procedure Act 1997. It also raised the wider question whether procedural directions contained in a judgment are practice directions requiring statutory approval.

1. Appeal allowed. Rules of court have the force of delegated legislation. An individual judge cannot alter them by judgment or practice direction. The wide case-management powers under the Civil Procedure Rules 1998 permit departure from rules and practice directions in an individual case, but do not authorise their variation with general effect.

2. A practice direction binds the court to which it is addressed. A judge cannot ignore it, declare that it should cease to be followed, or replace it generally. A direction made through section 5(1) of the Civil Procedure Act 1997 can be varied through the procedure authorised by that subsection. A practice direction made otherwise requires the approvals specified by section 5(2).

3. Per Waller and Dyson LJJ, procedural guidance explaining how rules and practice directions operate is not itself a practice direction. Nor did Parliament intend the statutory definition to include a judgment prescribing or suggesting procedure where the rules and practice directions contain a genuine gap. In such a case the court acts judicially, not administratively. Clear statutory language would have been required to remove that inherent judicial power or make its exercise dependent on external approval.

4. The present case involved no such gap. Rule 8.9 expressly provides that a defendant using the Part 8 procedure need not file a defence. Practice Direction 8 paragraph 22 specifically regulates evidence in applications to quash ministerial decisions. Collins J therefore lacked power to establish a general ten-week period for defendants’ evidence, require grounds of resistance generally, reverse the sequence of skeleton arguments to secure compliance, or threaten costs consequences for adherence to the existing regime. A party seeking different case management in an individual case bears the burden of showing why that case falls outside the norm.

5. The court also confirmed that a defendant in a claim under sections 287 or 288 of the Town and Country Planning Act 1990 must serve an acknowledgment of service. Practice Direction 8 paragraph 22 varies the timetable for evidence but contains no sufficiently clear language disapplying that requirement.

6. Stanley Burnton LJ concurred in allowing the appeal but disagreed on the gap-case issue. In his view, a mandatory direction governing procedure in future cases remains a practice direction even when contained in a judgment and therefore requires the approvals prescribed by section 5, subject to the statutory exceptions.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The court held that Collins J had no power to vary the rules or practice direction generally by judgment.
2. Administrative Court: In [2008] EWHC 2143 (Admin), Collins J upheld the proposed power to require grounds of resistance and sought to establish general procedural expectations for applications under section 288 of the Town and Country Planning Act 1990.