Chapter 18 Crown Office List
Introduction 2. My objective is to secure greater uniformity of procedure among those cases which are dealt with by the Crown Office, which can at present be bedevilled by disputes as to procedure, notably where there may be an option as to what remedy to seek. For the same reason, there also needs to be greater uniformity between the procedures in public law cases and those in private law cases. The procedural exclusivity rule, whereby it is normally an abuse of process not to use judicial review when it is the appropriate procedure, has led to wholly undesirable procedural wrangles and has been much criticised by distinguished commentators. It continues to cause problems, notwithstanding some clarification by the House of Lords in the Roy case (Roy v Kensington and Chelsea and Westminster FPC [1992] 1 AC 624).
3. The Law Commission, in its 1994 report, Administrative Law: Judicial Review and Statutory Appeals, has made a series of recommendations for procedural reform which for the most part I warmly endorse. That report was published before the date of my interim report, on which my present proposals are also based. I have benefited considerably from the advice of the Crown Office Working Group under the chairmanship of Lord Justice Brooke, the former chairman of the Commission. I am also grateful to the members of the Justice/Public Law Project and to those who have organised and attended a series of conferences on public law proceedings, and made written submissions to me arising out of them.
4. Cases administered by the Crown Office List rarely involve determining factual evidence or hearing witnesses. Any necessary evidence is nearly always given by affidavit. Discovery, too, is rare. Crown Office proceedings are therefore on the whole free of the excesses that plague other proceedings. They can proceed rapidly to a hearing which will usually be quite short. They should involve relatively modest expenditure by the parties.
Nominated judges Local disposal Judicial review The form of application The remedies which should be available 10. I recommend that the court should have an express power to grant advisory declarations when it is in the public interest to do so. However, this should be limited to cases where the issue was of public importance and was defined in sufficiently precise terms, and where the appropriate parties were before the court.
11. Litigants will be encouraged to issue their claims for judicial review at the Crown Office, since it will continue to administer them. However, the originating process will not be invalidated if the claimant issues a claim in another court and it will be for that court to transmit the claim to the Crown Office.
Preliminary consideration 13. After a written refusal there should be a right of renewal to a single judge at an oral hearing and a further right of appeal to the Court of Appeal, but only with the leave of the judge or a Lord Justice, from a refusal at the oral hearing. In my view it would be sensible if this procedure applied in criminal causes and matters as well as civil causes. I recognise, however, that it raises questions of judicial deployment in criminal cases and further consultation will be needed to ensure that any difficulties can be overcome.
14. The preliminary consideration should be in writing, as the Law Commission proposes, unless the court directs an oral hearing. The judge conducting the preliminary consideration should be able to call upon the defendant to provide information, in a standard questionnaire, or to make representations, although I hope that greater use of the pre-application process will mean that this is not normally necessary. It would not be obligatory for the defendant to respond but failure to do could be taken into account in the decision whether the application should proceed.
15. The court should be able to grant interim relief before the preliminary consideration of the claim, although interim relief on an ex parte basis would only be granted in a very clear and urgent case. The rules should also make it clear that any appropriate remedy, including a stay, an interim declaration and bail, can be granted. The provisions on bail will be clarified, as recommended by the working group.
16. Case management is applicable to judicial review claims as well as to private law claims. At the preliminary consideration the judge should consider giving directions for the future conduct of the proceedings and the claimant should be able to indicate on a pro forma or standard form what directions should be given. The judge should also be able to ask the defendant for his views, although in most cases it will be preferable to make the directions subject to any written representations by him. Directions could be given as to:
(a) the persons on whom the claim should be served (the court should consider whether any public body other than the proposed defendant will be affected by the decision);
(b) whether there should be a defence;
(c) what, if any, further evidence is required and the form it should take (usually witness statements but exceptionally affidavits);
(d) the form which the hearing should take.
The judge should lay down a timetable, with as precise a date for the hearing as can be given. By giving directions the court should be able to limit the number of interlocutory hearings.
Defence 18. The defendant should be able to counterclaim for a declaration or other appropriate remedy which arises out of the matters to which the claim relates, unless the counterclaim could not be dealt with conveniently with the claim, as might happen where it would add extra parties. In certain cases it may be appropriate to impose a condition that a public authority should not seek the costs of the counterclaim.
Further evidence Standing 21. Consideration should be given to conferring on the court a discretion to allow third party intervention, both in the applicant's interest and in the public interest. If this is thought desirable, it should be a principle of general application, although the courts' approach should be more cautious when considering whether to allow intervention in proceedings concerning private rather than public law rights.
Costs Written determination Divisional Court and appeals The prerogative orders Bridging the divide 27. If a question arises as to whether the proceedings should have been brought by judicial review it will be possible to transfer the claim to the Crown Office for a case management conference, at which the same filtering process, without the court having to consider whether the issues are ones of public or private law, will apply, unless the answer is obvious or unless the issue needs to be resolved for substantive as opposed to procedural reasons. If the case is without merit, it can be dismissed irrespective of whether it raises public or private law issues; if it has merit the judge can direct it to proceed without determining whether it is a public or private law case. Furthermore, if the court thinks this is the best course to adopt in all the circumstances, it will be possible to leave consideration of standing and time limits until the final hearing. This is often necessary at present because the merits can affect both questions of standing and delay.
Habeas Corpus 29. The application will be made by using a claim and will be verified by the applicant or some other appropriate person. The applicant will be able to apply ex parte to a single judge orally or in writing and the judge will be able to order the claimant's release, dismiss the claim, adjourn a written application for a hearing or adjourn for a full inter partes hearing, giving directions for the hearing. The person served with a claim should answer it in a defence, setting out the facts relied on to justify the detention.
30. At present, in a criminal case where the judge does not order release, he has to refer the application to a Divisional Court. I recommend that he should have the same powers as the Divisional Court. Otherwise the judge on the inter partes hearing should have the same powers as at present. There should be the same routes of appeal as in judicial review. The Law Commission favoured assimilating the procedure in criminal and civil cases but were concerned about adding to the burdens of the Criminal Division of the Court of Appeal. If judicial resources are an impediment then I recommend that the appeal should be heard by a Divisional Court.
31. I also recommend that English names (writ of release, writ to give evidence, writ to answer a charge and writ of transfer) should replace the Latin names of the four forms of the writ. These names do not have the same significance as the names of the prerogative orders.
Committal 33. The same form of order should be used in the High Court and the county courts and there should be a requirement that copies of all orders for committal should be sent to the Official Solicitor. I also agree that the county courts should have the same power as the High Court to issue bench warrants for the arrest of contemnors, so that orders for committal are not made in their absence. It would be desirable if the Official Solicitor were to review all orders which, for whatever reason, had not been served within six months.
Recommendations (1) The procedures in public law cases should be brought into line with one another and with those in private law cases wherever possible. Use of the wrong procedure should not lead to the case being dismissed. Instead it should be dealt with so far as possible under the proper procedure.
(2) More judges from other Divisions should be nominated to hear Crown Office List cases.
(3) Certain Crown Office List cases should be heard outside London.
(4) Claimants for judicial review should use available methods of ADR.
(5) Claimants should notify the defendant of their proposed claim before starting proceedings.
(6) A claim for judicial review and any defence should follow the standard claim form and defence. Unless it would inconvenience the hearing of the claim for judicial review, it should be possible for the claimant to include any remedies which could be obtained in a private law action and for the defendant to make a counterclaim.
(7) The court should be able to grant advisory declarations in limited circumstances.
(8) At the preliminary consideration stage (formerly 'leave'), which should be in writing, the judge should allow the claim to proceed if there is a realistic prospect of success or some other reason why the claim should be disposed of at a substantive hearing. He should consider giving directions for the conduct of the claim and set a timetable.
(9) There should be a right to renew the application in non-criminal cases at an oral hearing before a single judge and a further renewal to the Court of Appeal, with leave. Consideration should be given to the same procedure applying in criminal causes.
(10) The court should be able to grant interim relief before the preliminary consideration but should only do so ex parte in a clear
and urgent case.
(11) The claimant will have standing if he has been or will be adversely affected or if it is in the public interest that the claim should be brought.
(12) All cases of judicial review should normally be heard by a single judge. There should be an appeal, with leave, to the Court of Appeal, Civil Division in non-criminal causes and consideration should be given to enabling appeals in criminal causes to lie, with leave, to the Court of Appeal, Criminal Division.
(13) The court should have a discretion to order costs to be paid out of public funds or to order that the unsuccessful party is not to pay the other party's costs where the proceedings have been brought in the public interest.
(14) It should be possible to determine some claims in the Crown Office List in writing where the parties agree.
(15) The rules on habeas corpus and committal for contempt will be clarified and simplified.
1. Many of the public law proceedings which are administered by the Crown Office are of considerable constitutional significance, since they are the means whereby the lawfulness of decisions of public bodies can be examined by the courts and individuals who have been improperly detained can secure their liberty. As has so often been stated, the growth of public law and, in particular, of judicial review has been one of the most significant developments in the English legal system in the last 25 years. It is therefore important to consider how the procedure and management of these proceedings are to be absorbed into the reformed civil justice system which I am advocating.
5. The use of judges specially nominated to hear Crown Office cases is one of the strengths of the Crown Office List. I hope, however, that in the future more judges from other Divisions can be nominated to hear Crown Office cases where their experience in a specialist area would be valuable.
6. There is also a real need for the resolution of some Crown Office List cases on Circuit. Some cases, for example those which involve central government or an issue of general importance, would not be appropriate for this, but many Crown Office List cases are no less local than disputes between two individuals. An example is judicial review of those housing cases which are not disposed of by the new procedure I am recommending. There has been a number of experiments designed to ascertain whether it is practicable for selected cases to be heard on Circuit, but they have not been successful. Nevertheless I am convinced that certain cases ought to be heard locally. The problem is that until the facility for cases to be heard at a local centre is firmly established, the cases do not surface. How best to achieve this depends on the resources available. However, I recommend that a start should be made. One way would be to select a single provincial centre for the hearing of Crown Office List cases. Unless a High Court judge could be made available, which I accept is unlikely, one or preferably two Circuit judges, sitting as deputy High Court judges, should be nominated for the purpose. The experience with Chancery and Mercantile lists suggests that it is essential to have a judge with the required expertise available with sufficient regularity to persuade local practitioners to take what will be on offer seriously.
7. Some of the general recommendations which I am making apply as much to Crown Office cases as to private law cases. Some apply even more strongly. Among these is the recommendation that applicants should be encouraged to resolve their complaints without resorting to litigation. There is an increasing number of grievance procedures and ombudsmen available for this purpose. Applicants should normally use these procedures first. Judicial review ought to be conserved as a remedy of last resort. Before an application is made to initiate proceedings for judicial review, the proposed applicant should have taken advantage of any system of dispute resolution available, unless it would be unreasonable to do so, for example because the complaints procedure is too slow. If there is no satisfactory system of ADR the applicant should notify the proposed defendant of the claim, giving sufficient information to enable a response to be made rapidly so that the applicant could still comply with the three month time limit within which the claim must usually be brought. The defendant would not be obliged to respond, but should notify the applicant that there was to be no response. The fact that the court can extend time should avoid an applicant who waits for a reasonable period for a response from being prejudiced. This will put on a slightly more formal basis the growing practice of writing a letter before commencing proceedings, which was strongly urged by Brooke J in R v Horsham DC ex p Wenman [1994] 4 AER 681.
8. Rather than being a completely separate form, as at present, an application for judicial review should follow the standard claim form. In other words, it must include a summary of the facts relied on and its contents must be verified. It will therefore replace the application and principal affidavit in support. I hope that it will also overcome the current problem of excessively lengthy applications and affidavits. There will, of course, be particular requirements for claims for judicial review, for example that a copy of the decision which is the subject matter of the claim and any response by the defendant to the pre-application process must be attached.
9. I see no reason why any remedies which could be obtained in a private law action, or a writ of habeas corpus, should not also be included in a claim for judicial review, so long as it is not inconvenient to do so. The court should be able to direct that additional claims should be disposed of separately or made the subject of a separate claim if their inclusion would interfere with the disposal of the claim for judicial review. When considering whether to grant relief the court should be able to take into account any offer by the defendant to pay compensation.
12. I agree with the Law Commission that the leave stage should be renamed the preliminary consideration stage. This will also demonstrate that the initial filtering process is very much the same as that which will take place in private law proceedings. It should, however, take place on the application being made, before any defence is filed, rather than after the defence has been filed, as usually happens in private law proceedings. The same criteria should also be applied in determining whether the case should proceed, namely whether there is a realistic prospect of success or some other reason why the case ought to be disposed of at a substantive hearing. The judge should give brief reasons where he refuses permission to proceed.
17. If the issues are sufficiently clear from the claim the judge may decide to inform the defendant that he need only provide a skeleton argument. Otherwise, he will indicate that there should be a defence, although the defendant will have the option of saying on the notice of intention to defend that he will not file a defence. The defence should be in the standard form of a defence to the claim. Like the claim, it will not be a lengthy and complex document but should be restricted to a succinct statement of the facts (so far as they differ from those set out in the claim) relied on by the defendant and his contentions. It should have annexed to it any documents relied on. It would replace the present principal affidavit, since there will be a requirement that the defendant verify the truth of its contents.
19. The parties will be allowed to put in additional evidence, but they will have to justify the costs of doing so, since judicial review is not the normal way of resolving issues of fact.
20. I support the Law Commission's recommendation that the present generous practice of the courts in interpreting the requirement that the applicant must have a 'sufficient interest' in the matter to which the application relates should be incorporated in the new rules. This should be in general terms, although a practice guide could indicate relevant factors. I agree with the Commission that the applicant will have standing if he has been or will be adversely affected or if it is in the public interest that the proceedings should be brought. This is the test which I consider should be of general application: in appropriate private law cases, such as claims for a declaration, the courts should on occasion be able to allow proceedings to continue if it is in the interests of justice or in the public interest that they should do so. As the Justice/Public Law Project paper points out, the question of the applicant's standing can ultimately be treated as secondary to the merits of the case.
22. I agree with the Law Commission that legislation should confer a discretion on the court to order costs to be paid out of public funds where it is in the public interest that proceedings should be brought. If this recommendation is not implemented I recommend that the court should have a discretion not to order an unsuccessful party to pay the other party's costs, on the grounds that the proceedings have been brought in the public interest. Initially the discretion should only be exercised where there would otherwise be substantial hardship.
23. As judicial review and some statutory applications in the Crown Office List do not usually involve oral evidence, they are susceptible to disposal in writing. This would not be appropriate for cases involving a point of principle, but it could sometimes be a valuable option for a straightforward case where the parties agreed on its use. Arrangements would need to be made for the documents and the judgement to be inspected by the public. Subject to these points I recommend that the judge should have a discretion to direct that there should be no hearing.
24. At present judicial review in criminal causes and in the heaviest civil cases are heard by a Divisional Court of at least two judges. The justification in criminal causes is the restricted right of appeal to the House of Lords. In my view all cases of judicial review should be heard by a single judge unless there are exceptional circumstances. The proposals in paragraph 13 as to renewal at the preliminary consideration stage should be applied to appeals from substantive decisions. In criminal causes the appeal should be to the Criminal Division of the Court of Appeal and in non-criminal causes to the Civil Division. In both cases leave from the judge or the appeal court would be required. The requirement of leave is justified because of the need for certainty in criminal matters; it already exists in most civil appeals. As with the proposals on renewal of applications, there should be further consultation about this.
25. Although I am an enthusiast for adopting modern English, I am not in favour of the Law Commission's proposal to replace the names certiorari, prohibition and mandamus with a quashing, prohibiting and mandatory order. The Latin names are used throughout the common law world and have become synonymous with the duty of superior courts to protect the public against the abuse of power. I am not sure that the proposed alternatives are that much easier to comprehend. On the other hand I agree with the Treasury Solicitor that the title of judicial review proceedings, R v A, ex parte B, is outmoded and should be changed to A v B.
26. The recommendations which I have made are intended to bridge the divide between public law and private law claims by bringing the two procedures together. The same statements of case will be used in both, so that there will be no need for a claim in one area to be treated as though it had been begun by another procedure. It is nevertheless important that the safeguards of the three month time limit and of standing, which are necessary in judicial review claim, should not be bypassed, but these can be retained without making it an abuse of process to adopt the wrong procedure.
28. So venerated is the writ of habeas corpus that law reformers have been cautious about interfering even with the procedure by which it is obtained. I share the Law Commission's view that it should not be absorbed into judicial review. However, I believe that its procedure should be as similar as possible to that for judicial review and it should be possible to seek a writ of habeas corpus on a claim for judicial review.
32. The working group has made suggestions to clarify and improve RSC Order 52, which deals with committal for contempt of court. I agree that the rules should distinguish more clearly between civil contempt,
ie breach of an order or undertaking, and criminal contempt, which usually relates to conduct interfering with the administration of justice. The former should be dealt with by general provisions, since applications are made to the court which made the order, whereas the latter is dealt with in the Crown Office List. The new rules will give effect to the working group's proposals and will aim to treat all litigants in the same way.
My main recommendations are as follows.