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Lecturer in Law

University of Essex

[email protected]

Copyright © 2000 Tom Cornford
First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

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Order 53 of the Rules of the Supreme Court, which contained the rules of procedure for judicial review, has been abolished and replaced by the new Part 54 of the Civil Procedure Rules. The new Rules bring judicial review fully within the framework of the CPR and also implement certain recommendations of the Bowman Committee’s Report on the Crown Office List. The result is a procedure which is in most respects the same as its predecessor. There are, however, also some significant changes, most notably with respect to the permission stage and third party intervention. The latter change is an advance, but the former represents a further tipping of the scales in favour of defendant public authorities.

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Contents

Introduction
Procedural Exclusivity
The Initial Application and Permission Stages
Evidence and Disclosure of Documents
Standing and Third Party Intervention
Conclusion

Bibliography

Court procedure is in a state of flux. Lord Woolf's reforms to the rules governing civil procedure came into force in April 1999. Judicial review has not, until now, felt the full impact of these reforms however. In his reports on Access to Justice, Lord Woolf made recommendations (Lord Woolf 1996, ch.18) as to how judicial review procedure should be altered but these were not put into effect. Instead, the old Order 53 of the Rules of the Supreme Court was re-enacted, with minor amendments, in a schedule to the Civil Procedure Rules (CPR). As Lord Woolf explained in his forward to Judicial Review and Crown Office Practice (Gordon 1999, pp.v-vi), "Crown Office proceedings will not benefit from the simplified procedures contained in the new Rules. They will continue to be governed by the existing Rules of the Supreme Court." At the same time, judicial review procedure did become subject to the "overriding objective" contained in CPR Part I. The overriding objective is that cases be dealt with justly which includes, so far as practicable:

“(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate:

(i) to the amount of money involved,

(ii) to the importance of the case,

(iii) to the complexity of the issues, and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

and

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.”

In the meantime, other factors have increased the momentum towards further reform of judicial review procedure. Chief among these have been the continuing growth in the volume of applications for judicial review, especially in the area of immigration, and the need to make procedural changes to facilitate the operation of the Human Rights Act 1998. In March 1999, with these problems in mind, the Lord Chancellor appointed a committee under the chairmanship of Sir Jeffery Bowman, to propose improvements to the procedures and internal organisation of the Crown Office. The Committee published its Report in April this year (Bowman Report 2000). Many of its recommendations concerned matters of organisation and staffing but amongst them were recommendations for changes to the rules. Soon after the Report's publication, the Lord Chancellor's Department issued a consultation paper and new draft rules (Lord Chancellor’s Department 2000). The process has resulted at last in the abolition of Order 53 and its replacement with the new CPR Part 54.⁽¹⁾ The new Rules have the dual function of making judicial review procedure conform to the style and purposes of the CPR and putting into effect those of the Bowman recommendations eventually accepted by the Rules Committee.

Several of the changes made by the Rules are cosmetic. Thus, the Crown Office list is renamed the "Administrative Court". Certiorari is now a "quashing order" (r 54.1(d)), mandamus a "mandatory order" (r 54.1(b))and prohibition a "prohibiting order" (r 54.1(c)). In accordance with the rest of the CPR, the applicant is now the "claimant" and the respondent is now the "defendant". Leave has been called “permission” since the amendments made in 1999.

Other changes represent procedural innovations but which are unlikely to be of great substantive significance. For example, a judicial review may now be decided without a hearing if the parties agree (r 54.18) and the court may, subject to any statutory provision to the contrary, take a decision itself rather than remit it to the original decision-maker (r 54.19(3)).

A small number of the changes are likely, or might be thought likely, to have a real impact on the substance of judicial review and it is with these potentially significant changes that this note is principally concerned. They can be classified as falling within four areas of procedure: procedural exclusivity; the initial application and permission stages; evidence and disclosure of documents; and standing and third party intervention. In what follows I deal with the likely effects of the new Rules on each of these areas in turn.

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The first question which faces the claimant against a public authority is whether to use judicial review or some other form of proceedings. The procedural reforms of 1977 brought in their wake the exclusivity principle enunciated by Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237. At first, the principle was understood in some quarters⁽²⁾ as requiring the use of judicial review in all cases involving significant public law issues even if this meant that, for purely procedural reasons, some citizens would lose the right to vindicate private law rights. Subsequent case law has made it necessary to modify that view. It is now clear that the decision of a public authority can be challenged by means of private law procedure whenever there is a private right involved (as in Wandsworth LBC v Winder [1985] 1 AC 461) or even in cases in which there are only interests analogous to private rights and in which private law procedure is functionally well-adapted to determining the issues: see Roy v Kensington and Chelsea FPC [1992] 1 AC 624 (HL); Mercury Communications v Director General of Telecommunications [1996] 1 WLR 48 (HL); Dennis Rye Pension Fund Trustees v Sheffield City Council [1997] 4 All ER 747 (CA). Nonetheless, O'Reilly has never been overruled and the principles it contains have continued to prove a rich source of confusion. As recently as 1997, Lord Woolf, in the Dennis Rye case (at p 749), lamented the waste of resources to which the procedural wrangling in that case had given rise.

The question now is whether the new Rules do anything to alter this state of affairs. The first thing to note is that the Rules bring judicial review fully within the framework of the CPR. Thus "the judicial review procedure" is now defined as "the Part 8 procedure as modified by this part" (r 54.1(2)(e)). This means that a "claim for judicial review", as it is now called (r 54.1(2)(a)), is to be assimilated to other proceedings "unlikely to involve a substantial dispute of fact" (r 8.1(2)(a))⁽³⁾.

On the other hand, the modifications which Part 54 makes to Part 8 are very significant. In particular, they preserve those safeguards of public authorities' interests which furnished the original justification for insisting that public law challenges be brought by means of judicial review. Thus the permission stage is retained, albeit in altered form. And as before, a claim must be commenced promptly and, in any event, not later than 3 months after the grounds to make the claim arose (r 54.5). The time limit provisions are, in fact, somewhat stricter than the old Order 53 because they provide that the time limit may not be extended by agreement between the parties (r 54.5(2))⁽⁴⁾.

Furthermore, the rules setting out the remedies available on judicial review are clearly intended to preserve the arrangement adopted in 1977 - i.e. the prerogative orders (or their renamed equivalents) are to be available only on judicial review, and declarations and injunctions are to be available on judicial review where a case is of the type in which one of the prerogative orders might also be sought (rr 54.2 and 54.3)⁽⁵⁾. All in all, the new Rules uphold judicial review's status as a special jurisdiction, a fact which, in itself, means that some form of procedural exclusivity is likely to persist.

Against this must be set the recent judgment of the Court of Appeal in Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752. The case concerned a student who had been denied the possibility of obtaining a degree of higher than third class in breach, she alleged, of university regulations. She sued on the contract between herself and the university but her claim was struck out as non-justiciable. At her appeal to the Court of Appeal, the university argued that she ought to have proceeded by way of judicial review. The Court of Appeal's judgment was given after the coming into force of the CPR but before the advent of Part 54. Lord Woolf, with whom the other judges agreed, took the opportunity to attempt yet again to lay to rest, or, at least, reduce in importance, the exclusivity principle. Where the claimant had a contractual right, he said, the court would not strike out her private law claim solely on the ground that she had used the wrong procedure, even though the claim might more appropriately have been brought via judicial review. The danger of abuse was minimised by the powers available to the court under the CPR. Where there was excessive delay, the court could take this into account in deciding whether there was an abuse of process which made it appropriate to strike the claim out. Equally, delay would be relevant in deciding whether to give summary judgment under Part 24. Contrary to the position prior to the CPR (set out in Birkett v James [1977] AC 297), the court could intervene to prevent such abuse even where the limitation period was still current. As his Lordship explained at p 761f:

"The emphasis can therefore can be said to have changed since O'Reilly v Mackman. What is likely to be important when proceedings are not brought by a student against a new university under Ord 53, will not be whether the right procedure has been adopted but whether the protection afforded by Ord 53 has been flouted in circumstances which are inconsistent with the general principles contained in Pt 1."

It was clearly Lord Woolf's purpose to emphasise the court's flexibility and minimise the importance of the choice between procedures. It is unlikely, however, that the judgment will much reduce the importance of the exclusivity principle. If the scope of the judgment is confined to litigants who have contractual rights then it breaks no new ground. As mentioned above, it is well established that holders of private rights are entitled to use private law procedure. As Sedley LJ pointed out in his judgment in Clark (at p 757d), the claimant’s position was stronger than that of the plaintiff in the Roy case. At the same time, if the scope of the judgment is confined in this way, there will remain a large class of claimants who do not possess a private right or anything like it and who will continue to be obliged to use judicial review.

If, on the other hand, the judgment is applied beyond the contractual context, it gives very uncertain guidance. Suppose claimants lacking anything resembling a private right were encouraged to believe that they could seek a declaration by means of private law procedure, the interests of public authorities being protected by the power of the court to strike out or give summary judgment. Such a course might be attractive given the more generous time limits and the potentially greater likelihood of documents being disclosed. The principles Lord Woolf refers to as being relevant to the decision whether to strike out or give summary judgment are those contained in the CPR's overriding objective. These say nothing about the circumstances in which public authorities need to be protected. The most relevant principles are contained in the delay provisions of s.31(6) of the Supreme Court Act 1981 which has application only to judicial review. The whole logic of having a special procedure for judicial review dictates that purely or predominantly public law cases must be decided on judicial review⁽⁶⁾.

To conclude this section, neither the new CPR Part 54, nor Lord Woolf's application of the CPR to the problem of exclusivity are likely to do much to reduce its importance. We have probably not seen the last of fruitless litigation over procedure.

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In considering the changes to the earlier stages of judicial review procedure brought about by the new Rules it is useful to begin with Bowman. The new Rules are closely modelled on Bowman's recommendations which therefore provide an insight into the Rules' underlying rationale. The Bowman Committee's terms of reference required it to "put forward costed recommendations for improving the efficiency of the Crown Office List..." that do "not compromise the fairness or probity of proceedings, the quality of decisions, or the independence of the judiciary" (Bowman Report 2000, preface p ii). In practice the Report is overwhelmingly concerned with matters of cost and efficiency. Nonetheless, certain of the Report's recommendations show a real concern to improve the fairness of the system. In relation to the early stages of judicial review procedure, Bowman was concerned with two specific problems. One was the perennial problem of keeping the Court's caseload within manageable proportions. The other was the phenomenon of post-permission settlement whereby a high proportion of applicants, having obtained permission and thus used up judicial time, then settle with the respondents (p.68 para 19). Bowman's proposed solution involved two principal innovations. Firstly, the permission stage was to be made an inter partes procedure with the defendant authority being given full notice of the application (Ch.7 paras 18-25). Secondly, consideration of permission applications was to be always, in the first instance, on paper (Ch.7 paras 26-27)⁽⁷⁾. The latter proposal was intended to enable the Court to deal more quickly with permission applications, the former to encourage pre-permission settlement. At the same time, Bowman made a proposal intended unequivocally to improve the fairness to applicants of the permission stage. This was that a presumption in favour of granting permission where the test of arguability was satisfied should be spelt out in the rules (Ch.7 paras 13 and 14).

The new Rules largely implement these proposals. The claim form must include, or be accompanied by, a detailed statement of the claimant's grounds for bringing the claim for judicial review, a statement of facts relied on, a time estimate for the hearing (presumably the substantive hearing after permission has been granted), any written evidence in support of the claim, copies of any document on which the claimant proposes to rely and a list of essential documents for advance reading by the court (r 54.6(2) and Practice Direction (PD) 54 paras 5.6 and 5.7). The claim form must be served on the defendant and, unless the court otherwise directs, any person the claimant considers to be an interested party, within 7 days of the date of issue (r 54.7). Any person served with the claim form who wishes to take part in the judicial review must file an acknowledgment of service not more than 21 days after service of the claim form. If the defendant (or any other person acknowledging service of the claim form) wishes to contest the claim, he must set out a summary of his grounds for doing so in the acknowledgment (54.8). Failure to acknowledge service does not, however, exclude the defendant from subsequent participation in the proceedings. Provided he files grounds for contesting the claim within 35 days of the order giving permission, he is entitled to appear at the substantive hearing (r 54.9(1))⁽⁸⁾. The only sanction for failure to acknowledge service lies in the court's power to take it into account when deciding costs (r 54.9(2)). The court will generally, in the first instance, consider the question of permission without a hearing (PD 54 para 8.4)⁽⁹⁾. Where it does so and refuses permission, or grants it only on certain grounds or subject to conditions, the claimant may request that the decision be reconsidered at a hearing (i.e. the claimant may renew the application in the same way as was previously possible) (r 54.12). Where, permission is refused on renewal the claimant is allowed, as before, one further bite at the cherry. Part 52 CPR, the part concerned with appeals, provides that the claimant may apply to the Court of Appeal for permission to appeal against the refusal. The Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review and the case will then proceed in the High Court unless the Court of Appeal orders otherwise (r 52.15). The Rules remove the power, which previously existed, to apply to have the grant of permission set aside (r 54.13)⁽¹⁰⁾. This change was also recommended by Bowman (Bowman Report 2000, ch.7 para37) and follows naturally from the defendant's greater power to intervene at the permission stage.

What is lacking is the one measure proposed by Bowman to improve the claimant’s position at the permission stage. Like the old Rules, the new Rules say nothing about the criteria for the grant of permission and thus leave matters in the rather unpredictable state that they were in before⁽¹¹⁾.

The desirability of these reforms to the permission stage must be assessed in the light of the CPR's overriding objectives of ensuring that the parties are on an equal footing and saving expense, objectives which correspond closely to those of efficiency and fairness which formed the core of Bowman Committee's terms of reference, set out above.

There are reasons to doubt that the changes to the permission stage brought about by the new Rules will cause the efficiency gains envisaged. There is no space here to go into these reasons in detail. The arguments are made at length elsewhere (in Bridges, Meszaros and Sunkin 2000, Cornford and Sunkin 2001). Suffice it to say that the arguments supporting these changes are derived from Bowman and the arguments to be found in Bowman make some questionable assumptions and are based on meagre data.

So much for efficiency. What can be said with some confidence, from the point of view of equality and fairness, is that the new rules governing permission increase the disadvantages of the claimant vis-a-vis the defendant. The proper approach to leave under the old Rules of the Supreme Court was set out by Lord Diplock in R v Inland Revenue Commissioners, ex parte National Federation of Self-employed and Small Businesses Ltd. [1982] AC 617 at p 644A:

"If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of judicial discretion, to give him leave to apply for that relief."

The new Rules alter the character of the permission stage from a filter designed to weed out obviously unarguable cases quickly to a form of inter partes proceeding. Yet at the same time it lacks the safeguards of the claimant's interests which one would expect in a procedure designed to put the parties on an equal footing. The claimant has from the outset to go to the trouble and expense of assembling all the relevant materials and must disclose its case in full to the defendant. The defendant need do no more than give its defence in outline. In the normal course of things, the claimant will have no opportunity to rebut the allegations made by the defendant because permission will be decided on the papers. In short, whether or not judges are willing or able when applying other Parts of the CPR, to ensure that the parties are on an equal footing, the regime introduced for judicial review seems designed, in an important respect, to exclude that principle. The interests which predominate are those in saving court time, and another, not set out in the CPR's overriding objective, the importance of protecting public authorities.

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Hitherto, perhaps the single greatest source of inequality between claimant and defendant in judicial review has been their differing positions with respect to information. The defendant public authority always has access to information as to why the challenged decision was made. The claimant, in the absence of a general duty to give reasons or a comprehensive freedom of information regime, often does not. Without such information it is hard to mount a convincing claim.

One of the innovations of the new Order 53 in 1977 was that it made it possible for a judge to order discovery in accordance with the principles which applied in ordinary civil proceedings⁽¹²⁾. One of the justifications for requiring public law claims to be brought exclusively by judicial review was that discovery was now available upon application "whenever, and to the extent that the justice of the case requires" (per Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237 at p 282B). It soon became clear however that discovery would be ordered in only very limited circumstances. Order 24 rr 8 and 13(1) required that orders for discovery were not to be made unless the court was of the opinion that discovery was "necessary either for disposing fairly of the cause or matter or for saving costs" and this was made the foundation of the court's restrictive approach. This approach was made clear in a series of cases in the Court of Appeal⁽¹³⁾. The applicant would bring his challenge and the respondent authority would be entitled to defend and explain its actions by means of affidavits. The court would then only accede to any application for discovery by the applicant if he could already point to evidence in his possession which cast doubt on the veracity of the affidavit. The applicant was thus in a Catch-22 situation. He could only obtain evidence to disprove the authority's version of events if he already possessed it.

The advent of a new procedural code naturally raises hopes that there might be some improvement in this state of affairs. In particular, features of the overriding objective suggest a more generous approach to disclosure of documents. The court’s duty to ensure that the parties are on an equal footing might be interpreted, for example, as requiring it to order the defendant to support with evidence assertions made about the decision-making process in order to rebut the claimant's arguments. The parties' duty, under r 1.3, to help further the overriding objective might be taken as requiring public authorities to give potential claimants full information about the decision in issue so that the claimant could know in advance whether it was worth proceeding with litigation. This latter inference is supported by the Protocols Practice Direction which provides, at para 4:

“In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in C.P.R. 1.1(2)(a), (b) and (c), to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings.”

Whether a party has complied with pre-action protocol is to be taken into account by the court when making decisions on case management or costs. No pre-action protocol has yet been made covering judicial review.

Arguments that the CPR have these effects can, and probably will, be made. Unfortunately, the history of Part 54 and its clear intention to preserve the features which make judicial review a special jurisdiction all point in the opposite direction. As pointed out above, in making judicial review procedure a modification of Part 8, the Rules committee has classified it as a type of proceeding "unlikely to involve a substantial dispute of fact". This is reflected in the fact that r 54.16 and PD 54 para 12.1 rule out disclosure of documents unless specifically ordered by the court⁽¹⁴⁾. Furthermore, it is hardly to be expected that the CPR will encourage greater disclosure of documents in judicial review, when its basic purpose is to save court time and speed up litigation.

It thus seems unlikely that the courts will be more generous in granting disclosure, while the paragraph in the Protocols Practice Direction, quoted above, probably does no more than encourage the well-established practice of sending letters before action⁽¹⁵⁾.

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On the question of standing, Order 53 provided that "the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates"(r 3(7)). Bowman recommended retention of the sufficient interest test but with the presumption in favour of the claimant: "[s]tanding should be granted when the claimant has sufficient interest in the matter to which the application relates" (ch.7 paras 28-31). This was in contrast to the earlier recommendations of both the Law Commission and Lord Woolf that the possibility of granting standing on public interest grounds should be made explicit. The new Rules say nothing about standing at all. The Lord Chancellor's Department's consultation document explains, revealingly, that Bowman's proposal was rejected because "a substantial change in wording might result in unnecessary litigation which could put an unjustified strain on the Crown Office caseload" (Lord Chancellor’s Department 2000 p 7). The course proposed, the document goes on, is not to refer to standing but to rely on developed common law. Arguably, an easier way to avoid increased litigation would have been simply to reproduce the existing rule which, in any case, still survives in identical form in s.31(3) of the Supreme Court Act 1981.

Of much greater significance is r 54.17 which gives the court power to permit any person to file evidence or make representations at the hearing of the judicial review. In recent years the courts have shown themselves increasingly willing to allow third party intervention by groups purporting to represent either some aspect of the public interest or some particular interest not adequately represented at the hearing. A good recent example is R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) [1999] 2 WLR 827 where a number of human rights groups and representatives of victims of the Pinochet regime were allowed to intervene. With the coming into force of the Human Rights Act, interventions of this type are likely to become more frequent. Until now, however, the only formal bases for this were three rules to be found in Order 53. R 5(3) provided that the claim form had to be served on all persons directly affected. R 5(7) allowed the court to hear persons who ought to have been served under r 5(3). R 9(1) allowed the court to admit any person who desired to be heard in opposition to the application for judicial review and who the court was satisfied was a proper person to be heard. It was possible to give these rules a liberal interpretation. There is also authority for the proposition that the court in judicial review has an inherent jurisdiction to permit persons to be heard in order to ensure that all those affected by a decision in the case have an opportunity to present their case: see R v MAFF, ex parte Anastasiou (Pissouri) [1994] COD 329. Nonetheless, the new rule puts third party intervention in the public interest on a much firmer footing.

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The new Rules leave intact most of the essential features of the old procedure under Order 53. Where significant changes have been made, as in the case of the permission stage, they are by and large driven by considerations of saving court time and protecting public authorities rather than of fairness or access to justice. The one notable exception is the explicit opening up of the process to third party intervention.

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Bowman Report (2000) Review of the Crown Office List: A Report to the Lord Chancellor.

Bridges, Meszaros and Sunkin (1995) Judicial Review in Perspective.

Bridges, Meszaros and Sunkin (2000) "Regulating Judicial Review" [2000] Public Law pp.649-668.

Cornford and Sunkin (2001) "Bowman, Access and the Recent Reforms of Judicial Review Procedure" in Public Law for spring 2001, forthcoming.

Gordon, R (1999) Judicial Review and Crown Office Practice.

Lord Chancellor's Department (2000)Judicial Review: Proposed New Procedures and Draft Rules CP8/00.

Lord Woolf (1996) Access to Justice: Final Report.

Sunkin and Le Sueur (1992)"Applications for Judicial Review: The Requirement of Leave" [1992] Public Law 102.

⁽¹⁾ The new rules are contained in the schedule to SI 2000/2092, laid before Parliament on 2nd August 2000 and came into force on 2nd October 2000. See also Practice Direction 54 -Judicial Review.

⁽²⁾ See e.g. Sir Harry Woolf in "Public Law - Private Law: Why the Divide? A Personal View" [1986] PL 220, where he criticised the House of Lords' decision in Wandsworth LBC v Winder [1985] 1 AC 461.

⁽³⁾ It has been the case since the coming into force of the CPR in April 1999 that an application for judicial review must be begun by claim form. However, it is now the whole process, including the application for permission which is begun by claim form whereas until the advent of CPR Part 54 application for permission was still on form 86A.

⁽⁴⁾ R 54.5 also omits the provision enabling the court to extend the period for application where it considers there is good reason to do so. This is probably not significant in the light of the court's power under r 3.1(2)(a) to "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)". As was the case with Order 53, the provisions as to time limits in r 54.5 must be read together with s.31(6) of the Supreme Court Act 1981 which empowers the court to refuse to grant permission (leave in the words of the Act) where there has been undue delay and the court considers that the grant of relief "would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration".

⁽⁵⁾ It is possible to argue that CPR Part 54 in fact licences the bringing of a public law challenge by means of a private law claim. This is because r 54.1(2)(a) defines a "claim for judicial review" as "a claim to review the lawfulness of (i) an enactment; or (ii) a decision, action or failure to act in relation to the exercise of a public function" while 54.3(1) states that "[t]he judicial review procedure may be used in a claim for judicial review where the claimant is seeking (a) a declaration; or (b) an injunction" (my italics). Taken together, these two provisions seem to suggest that one could equally well seek judicial review by claiming an injunction or declaration in private law proceedings. That this argument can be made is almost certainly an inadvertent side effect of the unprecedented attempt to give the expression "judicial review" a substantive meaning. The reference to s.31(2) of the Supreme Court Act 1981 which succeeds the provisions of r 54.3 just quoted means that the interpretation can be definitively ruled out.

⁽⁶⁾ CPR 30.5 and 54.20 confer broad powers on the court to transfer cases to and from the Administrative Court but this cannot overcome the problem of cases which are begun outside the time limit for judicial review.

⁽⁷⁾ The Report emphasised that it should continue to be possible to renew permission application orally before the High Court and that refusal of permission in the High Court should be open to appeal, with leave, to the Court of Appeal: see p.64 para. 12.

⁽⁸⁾ The same subsection provides that the court may, in its discretion, allow the defendant who has failed to acknowledge service to appear at any hearing to decide whether to grant permission.

⁽⁹⁾ The Rules thus differ from the Bowman proposals in that the court is left with a discretion to hold a hearing to determine a permission application.

⁽¹⁰⁾ r 54.13. It has been suggested that an order giving permission could be struck out under the summary procedure provided for in CPR Part 24. Were this so, it could render r 54.13 nugatory.

⁽¹¹⁾ On the arbitrariness of the leave or permission stage as it has existed up until the present see Bridges, Meszaros and Sunkin (1995) ch.8 and Sunkin and Le Sueur (1992).

⁽¹²⁾ The power was conferred by Order 53 r 8. This permitted inter alia the making of an interlocutory application for an order under Order 24, the order concerned with discovery.

⁽¹³⁾ R v Inland Revenue Commissioners, ex parte J. Rothschild Holdings plc [1987] S.T.C. 163, 61 Tax Cas. 178; R v Secretary of State for Home Affairs, ex parte Harrison [1997] J.R. 113 (decided on 10th December 1987); R v Inland Revenue Commissioners, ex parte Taylor [1989] 1 All E.R. 906; R v Secretary of State for the Environment, ex parte London Borough of Islington and the London Lesbian and Gay Centre [1997] J.R. 121 (decided on 19th July 1991); R v Secretary of State for Health, ex parte Hackney London Borough Council 29th July 1994 unrep., transcript: Lexis; R v Secretary of State for the Home Department, ex parte Gardian [1996] C.O.D. 306. See also the dicta of Lord Scarman in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617 at p.654E.

⁽¹⁴⁾ The Bowman Report recommended that discovery should be restricted in this way despite recognising the possibility that claims under the Human Rights Act 1998 might require more frequent discovery: ch.7 para. 69.

⁽¹⁵⁾ See R v Horsham D.C., ex parte Wenman [1994] 4 All E.R. 681. The Bowman committee recommended a pre-action protocol. This proposal was taken up by the Lord Chancellor's Department and supported by most of the consultees. The proposal has not yet been implemented, but is likely, when it materialises, to be no more than a formalisation of the practice advocated in Wenman. See the Bowman Report ch.7 paras 16 and 17; Lord Chancellor's Department (2000) p.4.