PRACTICE DIRECTION 54A – JUDICIAL REVIEW
This Practice Direction supplements Part 54
Contents of this Practice Direction
SECTION I – GENERAL PROVISIONS RELATING TO JUDICIAL REVIEW
1.1 In addition to Part 54 and this Practice Direction attention is drawn to: (a) CPR Part 1; (b) section 31 of the Senior Courts Act 1981; (c) the Human Rights Act 1998; and (d) the Administrative Court Judicial Review Guide
The Court
2.1 (1) Part 54 claims for judicial review are dealt with in the Administrative Court.
(2) In exercise of the power under section 18(6) of the Tribunals Courts and Enforcement Act 2007, the Lord Chief Justice has directed that certain classes of claims for judicial review fall within the jurisdiction of the Upper Tribunal: see the directions dated 21 August 2013 and 24 October 2014.
(3) Practice Direction 54C contains provisions about where a claim for judicial review may be started, administered and heard. CPR rule 7.1A provides the general rule that claims against Welsh public bodies challenging the lawfulness of their decisions are to be issued and heard in Wales.
Rule 54.5—Time Limit for Filing Claim Form
3.1 Where the claim is for a quashing order in respect of a judgment, order or conviction, the date when the grounds to make the claim first arose, for the purposes of rule 54.5(1)(b), is the date of that judgment, order or conviction.
Rule 54.6—Claim Form
General
4.1 (1) A claimant seeking permission to apply for judicial review, urgent consideration or interim relief (whether by a claim included in the Claim Form itself or by a separate application notice) must ensure that the Claim Form or application notice sets out all material facts, that is all those facts which are relevant to the claim or application being made. A claimant must make proper and necessary inquiries before seeking permission to apply for judicial review or interim relief to ensure so far as reasonably possible that all relevant facts are known.
(2) A claimant should refer to any statutory provision which excludes the jurisdiction of the court to entertain the application, or to grant the relief sought, and should also refer to any alternative appeal mechanism that exists, or could have been used prior to seeking judicial review
Contents of the Claim Form
4.2 (1) The Claim Form must include or be accompanied by the following documents—
(a) a clear and concise statement of the facts relied on set out in numbered paragraphs – “the Statement of Facts”; and
(b) a clear and concise statement of the grounds for bringing the claim – “the Statement of Grounds”. The Statement of Grounds should: identify in separate, numbered paragraphs each ground of challenge; identify the relevant provision or principle of law said to have been breached; and provide sufficient detail of the alleged breach to enable the parties and the court to identify the essential issues alleged to arise. The Statement of Grounds should succinctly explain the claimant’s case by reference to the Statement of Facts and state precisely what relief is sought.
(2) The Statement of Facts and the Statement of Grounds may be contained in a single document.
(3) The Statements of Facts and Grounds should be as concise as possible. The two documents together (or the single document if the two are combined) shall not exceed 40 pages. In many cases the court will expect the documents to be significantly shorter than 40 pages. The court may grant permission to exceed the 40-page limit.
4.3 Any application (a) to extend the time limit for filing the Claim Form; and/or (b) for directions in the claim, should be included in or contained in a document that accompanies the Claim Form.
4.4 (1) In addition, the Claim Form must be accompanied by—
(a) any written evidence in support of the claim (in this regard, see also rules 8.5(1) and 8.5(7)).
(b) any written evidence in support of any other application contained in the Claim Form;
(c) a copy of any order that the claimant seeks to have quashed;
(d) where the claim for judicial review relates to a decision of a court or tribunal, an approved copy of the reasons for reaching that decision;
(e) where the claim is directed to the decision of any other public authority, a copy of any record of the decision under challenge;
(f) copies of any documents on which the claimant proposes to rely;
(g) copies of any relevant statutory material; and
(h) a list of essential documents for advance reading by the court (with page references to the passages relied on).
(2) Where it is not possible to file all the above documents, the claimant must indicate which documents have not been filed and the reasons why they are not currently available.
The claim bundle
4.5 (1) The claimant must prepare a paginated and indexed bundle containing all the documents referred to in paragraphs 4.2 and 4.4. An electronic version of the bundle must also be prepared in accordance with the Guidance on the Administrative Court website.
(2) The claimant shall (unless otherwise requested) lodge the bundle with the Court in both electronic and hard copy form. For Divisional Court cases the number of hard copy bundles required will be one set for each judge hearing the case.
Interested parties
4.6 (1) Any person who is an interested party (see rule 54.1(2)(f)) must be named in the Claim Form as such (see rule 54.6(1)(a)), and served with the Claim Form (see rule 54.7(b).
(2) Where the claim for judicial review relates to proceedings in a court or tribunal, any other party to those proceedings will be an interested party in the judicial review proceedings. For example, if the defendant in a criminal case in the Magistrates or Crown Court applies for judicial review of a decision in that case, the prosecution must always be named as an interested party in the judicial review claim.
Human rights
4.7 Where the claimant is seeking to raise any issue under the Human Rights Act 1998, or seeks a remedy available under that Act, the Claim Form must include the information required by paragraph 14.1 of Practice Direction 16.
Devolution issues
4.8 (1) In this Practice Direction “devolution issue” has the same meaning as in paragraph 1, Schedule 9 to the Government of Wales Act 2006, paragraph 1, Schedule 10 to the Northern Ireland Act 1998; and paragraph 1, Schedule 6 to the Scotland Act 1998.
(2) Where the claimant intends to raise a devolution issue, the Claim Form must: (a) specify that the claimant wishes to raise a devolution issue and identify the relevant provisions of the Government of Wales Act 2006, the Northern Ireland Act 1998 or the Scotland Act 1998; and (b) contain a summary of the facts, circumstances and points of law on the basis of which it is alleged that a devolution issue arises.
Rule 54.7—Service of Claim Form
5.1 Part 6 contains provisions about the service of Claim Forms. Except as required by rules 54.11 or 54.12(2), the Administrative Court will not serve documents and service must be effected by the parties.
5.2 Where the defendant or interested party to the claim for judicial review is—
(a) the Immigration and Asylum Chamber of the First-tier Tribunal, the address for service of the Claim Form is—
(by post)
Customer Investigations Team
Operations Directorate - HMCTS
Post Point 5.12
102 Petty France
London
SW1H 9AJ
(by e-mail)
Litigation_Team_C@justice.gov.uk
(b) the Crown, service of the Claim Form must be effected on the solicitor acting for the relevant government department as if the proceedings were civil proceedings as defined in the Crown Proceedings Act 1947. Practice Direction 66 gives the list published under section 17 of the Crown Proceedings Act 1947 of the solicitors acting in civil proceedings (as defined in that Act) for the different government departments on whom service is to be effected, and of their addresses.
Rule 54.8—Acknowledgment of Service
6.1 The Acknowledgment of Service must contain the information specified at rules 8.3(2) and 10.5.
6.2 (1) If a defendant chooses to file an Acknowledgement of Service, the Summary Grounds referred to in CPR 54.8(4)(a) should meet the following requirements.
(2) The Summary Grounds should identify succinctly any relevant facts. Material matters of factual dispute (if any) should be identified. The Grounds should provide a brief summary of the reasoning underlying the measure in respect of which permission to apply for judicial review is sought unless the defendant gives reasons why the application for permission can be determined without that information.
(3) The Summary Grounds should (again succinctly) explain the legal basis of defendant’s response to the claimant’s case, by reference to relevant facts.
(4) The Summary Grounds should be as concise as possible. Summary Grounds shall not exceed 30 pages. In many cases the court will expect the Summary Grounds to be significantly shorter. The court may grant permission to exceed the 30-page limit.
Rule 54.8A – Reply to acknowledgment of service
7.1 (1) A Reply should be filed only if necessary for the purpose of the court’s decision to grant permission to apply for judicial review, for example, where a discrete issue not addressed in the Claim Form is raised in the Acknowledgement of Service. A Reply is not the occasion to rehearse matters already referred to in the Claim Form.
(2) A Reply shall be as concise as possible and shall not exceed 5 pages. The court may grant permission to exceed the 5-page limit.
7.2 If a Reply is filed unnecessarily, the court may make any order it considers appropriate, whether as to costs or otherwise.
Rule 54.10—Permission Given
Directions
8.1 Case management directions under rule 54.10(1) may include directions about serving the Claim Form and any evidence on other persons.
8.2 Where a claim is made under the Human Rights Act 1998, a direction may be made for giving notice to the Crown or joining the Crown as a party. Attention is drawn to rule 19.4A (parties to Human Rights Act claims) and paragraph 6 of Practice Direction 19A (giving notice to the Crown of claims for declarations of incompatibility).
Rule 54.12—Permission decision without a hearing
8.3 In the first instance, the court will generally consider the question of permission without a hearing.
Permission hearings
8.4 Neither the defendant nor any other interested party need attend a hearing on the question of permission unless the court directs otherwise.
8.5 Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant.
Renewed applications for permission
8.6 The purpose of the request to reconsider a decision to refuse permission (rule 54.12(3)) is to identify the scope of the renewed application. The request must be succinct. It should identify which grounds are relied on in support of the renewed application, and address the reasons given by the Judge who refused permission on consideration of the papers.
8.7 The standard time estimate for the hearing of a renewed application is 30 minutes (to include time for judgment). Any request for a longer listing must be stated in the application. In any event, within 7 days following the date the application was filed, the parties must tell the Court the agreed time estimate for the hearing.
Rule 54.11—Service of Order Giving or Refusing Permission
9.1 An order refusing permission or giving it subject to conditions or on certain grounds only must set out or be accompanied by the court’s reasons for coming to that decision.
Rule 54.14—Response
10.1 (1) If a party required to file Detailed Grounds has already filed Summary Grounds, he may (if all relevant matters have already been addressed in the Summary Grounds) inform the court and all other parties that the Summary Grounds will stand as his Detailed Grounds.
(2) If a party files and serves Detailed Grounds, that document should be as concise as possible, and shall not exceed 40 pages. The court may grant permission to exceed the 40-page limit.
(3) Where a party filing Detailed Grounds intends to rely on written evidence or on documents not already filed, he must prepare a paginated and indexed bundle containing that evidence and those documents. An electronic version of the bundle shall also be prepared in accordance with the Guidance on the Administrative Court website.
10.2 The party shall file and serve electronic and hard copy versions of the bundle when he files and serves the Detailed Grounds.
Rule 54.16—Evidence
11.1 In accordance with the duty of candour, the defendant should, in its Detailed Grounds or evidence, identify any relevant facts, and the reasoning, underlying the measure in respect of which permission to apply for judicial review has been granted.
11.2 Disclosure is not required unless the court orders otherwise.
11.3 It will rarely be necessary in judicial review proceedings for the court to hear oral evidence. Any application under rule 8.6(2) for permission to adduce oral evidence or to cross-examine any witness must be made promptly, in accordance with the requirements of Part 23, and be supported by an explanation of why the evidence is necessary for the fair determination of the claim.
Rule 54.15—Where Claimant Seeks to Rely on Additional Grounds
12.1 Where the claimant intends to apply for judicial review on grounds additional to those set out in the Claim Form, the claimant must make an application to the court for permission to amend the Claim Form. The application should be made in accordance with the requirements of Part 23.
12.2 The application must be made promptly and should include, or be accompanied by, a draft of the amended grounds and be supported by evidence explaining the need for the proposed amendment and any delay in making the application for permission to amend.
12.3 The application, the proposed additional grounds and any written evidence, must be served on the defendant and any interested party named in the Claim Form or Acknowledgement of Service.
12.4 For the purposes of determining an application to rely on additional grounds, rules 17.1 and 17.2 shall apply. Where permission to rely on additional grounds is given, the court may give directions as to amendments to be made to the defendant’s Grounds or Detailed Grounds and/or such other case management directions as appropriate.
Rule 54.17—Court’s Powers to Hear Any Person
13.1 An application for permission to intervene under rule 54.17 should be made by application in the relevant proceedings, in accordance with the provisions of Part 23.
13.2 Any such application must be made promptly. The Court is unlikely to accede to an application to intervene if it would have the consequence of delaying the hearing of the relevant proceedings.
13.3 The Application Notice must be served on all parties to the proceedings.
13.4 (1) The duty of candour applies. The Application Notice should explain who the applicant is and indicate why and in what form the applicant wants to participate in the hearing.
(2) If the applicant requests permission to make representations at the hearing, the application should include a summary of the representations the applicant proposes to make.
(3) If the applicant requests permission to file and serve evidence in the proceedings a copy of that evidence should be provided with the Application Notice. The application should explain the relevance of any such evidence to the issues in the proceedings.
13.5 If the applicant is seeking a prospective order as to costs which departs from the provision made by section 87 of the Criminal Justice and Courts Act 2015, the application must include a copy of the order sought and must set out the grounds on which that order is sought.
13.6 Where the court gives permission for a person to file evidence or make representations at the hearing of the claim for judicial review (whether orally or in writing), it may do so on conditions and may give case management directions.
13.7 Where all the parties consent, the court may deal with an application under rule 54.17 without a hearing.
Rule 54.20—Transfer
14.1 Rule 30.5 provides the power to transfer proceedings between Divisions of the High Court and to and from a specialist list. In deciding whether a claim is suitable for transfer to the Administrative Court, the court will consider whether it raises issues of public law to which Part 54 should apply.
Skeleton arguments
15.1 The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.
15.2 (1) A skeleton argument must be concise. It should both define and confine the areas of controversy; be set out in numbered paragraphs; be cross-referenced to any relevant document in the bundle; be self-contained and not incorporate by reference material from previous skeleton arguments or pleadings; and should not include extensive quotations from documents or authorities. Documents to be relied on must be identified.
(2) Where it is necessary to refer to an authority, a skeleton argument must: state the proposition of law the authority demonstrates; and identify the parts of the authority that support the proposition. If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why.
15.3 Skeleton Arguments shall not exceed 25 pages. The court may grant permission to exceed the 25-page limit.
15.4 Any skeleton argument that does not comply with the requirements above may be returned to its author by the Administrative Court Office and may not be re-filed unless and until it complies with those requirements. The court may disallow the cost of preparing a skeleton argument which does not comply with these requirements.
15.5 The claimant must file and serve a skeleton argument not less than 21 days before the date of the hearing (or the warned date).
15.6 The defendant and any other party wishing to make representations at the hearing of the judicial review must file and serve a skeleton argument not less than 14 days before the date of the hearing (or the warned date).
15.7 Not less than 7 days before the date of the hearing (or the warned date), the parties shall file: (a) an agreed list of issues; (b) an agreed chronology of events (with page references to the hearing bundle); and (c) an agreed a list of essential documents for the advance reading of the court (with page references in the hearing bundle to the passages relied on) and a time estimate for that reading.
The hearing bundle and the authorities bundle
16.1 The parties shall agree the contents of a paginated and indexed bundle containing all relevant documents (or extracts from them) required for the hearing of the judicial review (“the hearing bundle”). Where the hearing bundle exceeds 400 pages, the parties shall agree the contents of a core bundle. The core bundle shall be paginated and indexed and shall include the pleadings, a copy of the decision and/or measure which is under challenge in the proceedings, and such further documents (or extracts from them) as the parties consider essential for the purposes of the hearing. Each party (or the solicitor acting for each party) shall certify that the hearing bundle and any core bundle meets the requirements of this paragraph.
16.2 An electronic version of the hearing bundle (and any core bundle) shall be prepared in accordance with the Guidance on the Administrative Court website.
16.3 Not less than 21 days before the date of the hearing (or the warned date), the parties shall lodge the hearing bundle (and any core bundle) with the Court in both electronic and hard copy form. For Divisional Court cases the number of hard copy bundles required will be one set for each judge hearing the case.
16.4 The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing of the judicial review (“the authorities bundle”). An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website.
16.5 Not less than 7 days before the date of the hearing (or the warned date), the parties shall lodge the authorities bundle with the Court in both electronic and hard copy form. For Divisional Court cases the number of hard copy bundles required will be one set for each judge hearing the case.
Agreed final order
17.1 If, prior to judgment being given on a claim the parties agree the terms of a final order to be made disposing of the claim, the claimant shall file 3 copies of the proposed agreed order together with a short, agreed statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on. Both the draft order and the agreed statement shall be signed by all parties to the claim.
17.2 The court will consider the documents referred to in paragraph 17.1 and will make the order if satisfied that the order should be made.
17.3 If the court is not satisfied that the order should be made, a hearing date will be set.
17.4 Where the agreement relates to an order for costs only, the parties need only file a document signed by all the parties setting out the terms of the proposed order.
Section II—Additional provisions for applications for permission to apply for judicial review in immigration and asylum cases—challenging removal
18.1 (1) This section applies where—
(a) a person has been served with a copy of directions for his removal from the United Kingdom by UK Visas and Immigration (“UKVI”) and notified that this section applies; and
(b) that person makes an application for permission to apply for judicial review before his removal takes effect.
(2) This section does not prevent a person from applying for judicial review after he has been removed.
18.2 (1) A person who makes an application for permission to apply for judicial review must file a claim form and a copy at court, and the Claim Form must—
(a) indicate on its face that this Section of the Practice Direction applies; and
(b) be accompanied by—
(i) a copy of the removal directions and the decision to which the application relates; and
(ii) any document served with the removal directions including any document which contains the UKVI’s factual summary of the case; and
(c) contain or be accompanied by a clear and concise statement of the claimant’s grounds for bringing the claim for judicial review; and
(d) state the claimant’s Home Office reference number;
If the claimant is unable to comply with paragraph (b) or (c) or (d) above the Claim Form must contain or be accompanied by a statement of the reasons why.
(2) The claimant must, immediately upon issue of the claim, send copies of the issued Claim Form and accompanying documents to the address specified by the UKVI .
(Rule 54.7 also requires the defendant to be served with the Claim Form within 7 days of the date of issue. Rule 6.10 provides that service on a Government Department must be effected on the solicitor acting for that Department, which in the case of the UKVI is the Government Legal Department (“GLD”). The address for GLD may be found in the Annex to Part 66 of these Rules.)
18.3 Where the claimant has not complied with paragraph 18.2(1)(b) or (c) or (d) but has provided reasons why he is unable to comply, and the court has issued the Claim Form, the Administrative Court—
(a) will refer the matter to a Judge for consideration as soon as practicable; and
(b) will notify the parties that it has done so.
18.4 If, upon a refusal to grant permission to apply for judicial review, the Court decides that the application is clearly without merit, that decision will be included in the order refusing permission.
Section III—Additional provisions for applications for judicial review of decisions of the Upper Tribunal
19.1 A person who makes an application for permission to apply for judicial review of the decision of the Upper Tribunal refusing permission to appeal must file a Claim Form which must: (a) state on its face that the application is made under Rule 54.7A; (b) identify which of the categories at Rule 54.7A(1)(a) – (c) apply; and (c) set out succinctly the grounds relied on in support of the claim.
