Key updates to the Administrative Court Guide

The Administrative Court Guide is an important resource for judicial review practitioners. Simon Kiely and Jonathan Blunden examine some recent changes.

Whilst the Administrative Court Guide (the "Guide") does not have the force of law, it is “essential reading for all those who practice in the Administrative Court” (R (DVP) v Secretary of State for the Home Department [2021] EWHC 606 (Admin) [8]). Accordingly, all those engaged in judicial review proceedings should have regard to it (R (AB) v Chief Constable of Hampshire Constabulary & Others [2019] EWHC 3461 (Admin) [108]). Following its annual review, the Guide has been updated and is now in its eighth (2023) edition. In this blog, we consider several key changes to the Guide with a particular focus on changes relevant for practitioners. For ease of reference, in this blog where we refer to new text in the Guide that text is underlined.

Procedural rigour

In what is now seemingly a recurring annual update, the Guide contains new content reiterating the need for litigants to observe the Court’s procedural rules in judicial review litigation. In paragraph 2.1.3, the Guide notes the following:

“The importance of procedural rigour is reflected in a number of sections of this Guide. It applies to claims with a public interest element with as much force as to other claims … and as much to defendant public authorities as to claimants.”

This need for procedural rigour is reflected in several new additions to the Guide. For example, the Guide explains, in respect of substantive judicial review hearings, the following at paragraph 10.1.5:

“A defendant or interested party who has not filed Detailed Grounds (or informed the court and the parties that the Summary Grounds are to stand as Detailed Grounds) within the time specified in CPR 54.14 (as varied by any order of the Court) requires permission to be heard at the substantive hearing. Although the Court is generally assisted by submissions from the defendant and interested party, this should not be regarded as a “late entry pass”. Where a defendant in default is given permission to participate, the Court may nonetheless impose a costs sanction, even in cases where the lateness does not cause identifiable prejudice””.

To the extent that it was not already clear, all litigants must observe the Court’s procedural rules when engaged in judicial review proceedings. As reflected in the new additions to the Guide, the Court will not overlook or tolerate breaches of directions made by the Court or of obligations imposed by the CPR or Practice Directions or by the Guide. Practitioners have (again) been warned!

Duty of candour

The Guide states the following in paragraph 15.3.2:

“The duty of candour has been recognised as applying at all stages of judicial review proceedings, including when responding to the pre-action letter, in Summary Grounds, Detailed Grounds, witness statements and in counsel’s written and oral arguments. However, what is required to discharge the duty at the substantive stage will be more extensive than what is required before permission has been granted”.

The same paragraph in the 2022 version of the Guide was different. In that version, the following was said about the duty of candour:

“The duty of candour has been recognised as applying at, or even before, the permission stage as well as at the substantive stage. However, …”

As we have noted previously (please see our blog here), there has been ambiguity about when the duty of candour was engaged: was it engaged at the pre-action stage or only at the permission stage of judicial review proceedings? The Guide, in its most recent iteration, has given endorsement to what we described in our recent blog as the ‘Treasury Solicitor’s Guidance’ approach, i.e., that the duty of candour is engaged at the pre-action stage. Practitioners should take note. Given the amendments to the Guide (which reflect a number of recent judicial decisions), it will increasingly be difficult to argue the contrary position, and the authorities in support of that contrary permission – that the duty of candour is only engaged at the permission stage (e.g., R (British Gas Trading and others) v Secretary of State for Energy Security and Net Zero [2023] EWHC 737 (Admin)) – seem increasingly less persuasive.

Evidence – disputes of fact

The Guide contains new content on evidence in judicial review proceedings. In particular, the Guide summaries (at paragraph 11.2.3) the applicable principles when a dispute of fact arises. In this respect, the Guide reflects the Court’s approach in R (F) v Surrey County Council [2023] EWHC 980 (Admin) at [50]. To the extent that this is relevant in a claim, practitioners should take note.

Evidence – the Court’s controlling role

In paragraph 10.1.6, the Guide notes the following:

“Pursuant to CPR 32.1, the Court has power to give directions to control evidence. This includes the power to direct that a witness statement or evidence be re-served omitting irrelevant or duplicative material. Legal proceedings do not exist for the purpose of permitting parties to put irrelevant matters in the public domain, and the court must be astute to ensure that proceedings, legitimately pursued, do not become the occasion to publicise irrelevant material.”

This new content refers to (and is based on) the Court’s judgment in R (Duke of Sussex) v Secretary of State for the Home Department [2022] EWHC 682 (Admin) at [21], [28], where the Court had curtailed an attempt by the Claimant to raise irrelevant factual issues in evidence, reinforcing that the purpose of the Administrative Court is to assess the legality of a decision by a public authority, and that the Court is not a finder of fact. For practitioners, this is a useful reminder of the purpose of evidence in judicial review proceedings and the need to ensure that evidence given in such proceedings is not hijacked for collateral purposes.

Evidence – requests for further information

Paragraph 7.6.2. of the Guide has been revised as follows:

“A party may apply for an order that another party provide further information under CPR 18 or disclose specific documents …”

This new addition refers to a footnote in which the following is stated:

“Requests under CPR Part 18 should remain exceptional and a court should direct that information be provided only when it is necessary to do so in order to resolve the matter fairly and justly. In deciding what is reasonably necessary and proportionate, the court may properly have regard to the fact that, in judicial review proceedings, the duty of candour applies: R (JZ) v Secretary of State for the Home Department [2022] EWHC 1708 (Admin), [26]-[28].”

Practitioners should take note of this when considering whether it would be appropriate to pursue such an application. Requests under CPR 18 should be exceptional.

Anonymity, orders for non-disclosure and open justice

The Guide contains a new section (at paragraphs 7.12 to 7.12.11) addressing anonymity, orders for non-disclosure, and open justice. In summary, the Guide notes that the Court’s guiding principle in respect of judicial review litigation (and proceedings more generally) is that of open justice meaning that, among other things, proceedings should take place in public.  However, the Guide also notes the Court’s powers to, for example, permit a judicial review claim form to be issued without the claimant’s name or address.

For practitioners, this new section may not be relevant in most judicial review claims. Nevertheless, where it is relevant, the new section contains a helpful synthesis of the approach to be adopted where a litigant is seeking a derogation from the open justice principle.

Redactions

New paragraph 15.5.3 of the Guide provides as follows.

“Parties should consider carefully whether the text being redacted is genuinely irrelevant. Text which explains the provenance and context of a document, such as the name of the sender, recipients or copy recipients of a document (even if these are junior officials) may be relevant. Without this information, it may be more difficult to understand the significance of the document. If a party wishes to redact such information from a disclosable document, an application should be made to the Court for permission to do so, explaining the reason for the redaction, where necessary with supporting evidence.”

In a footnote, the Guide cites Swift J’s judgment in FMA v Secretary of State for the Home Department [2023] EWHC 1579 (Admin) as authority for this proposition.

Practitioners (and in particular those that act for public authority defendants) should take note. Unless an application is made to permit the making of redactions to officials’ names / identities, such redactions should not be applied. To the extent that a “practice is developing by which such information is routinely removed from documents that are disclosable in judicial review proceedings, that practice should cease” (FMA at [48]).

In person hearings

The Guide contains the following new additions at paragraph 14.5:

“14.5.1 The default position is that hearings take place in a court room, with all parties attending in person, unless the Court otherwise directs.

14.5.2 If a party wishes to apply to attend a hearing remotely, an application must be made. Any such application must be made in accordance with the interim applications procedure (see paras 13.7 of this Guide).”

Practitioners should take note. Again, as a corollary of the importance of procedural rigour, simply asking the Court for a remote hearing will not do. A formal application must be made in good time, and evidence provided in support of that application.

E-filing

Paragraph 7.8.11 of the Guide states as follows:

“It is anticipated that the CE-File electronic file system will be applied to the Administrative Court during 2024. Further information as to start date and details will be published on the Judiciary website in due course. It is likely that a Practice Direction will be issued to coincide with the introduction of the CE-File system”.

The 2023 version of the Guide had stated that the CE-File electronic file system would be applied to the Administrative Court during 2023. Whether this transition will take place remains to be seen. Hope springs eternal!