The Civil Procedure Rules 1998

[F1 Consideration of [F2 the appropriate Minister’s] application E+W

79.26.— (1) Where [F3 the appropriate Minister] [F4 applies] in accordance with rule 79.25 for permission to withhold closed material the court will fix a hearing for [F3 the appropriate Minister] and the special advocate to make oral representations, unless—

(a) the special advocate gives notice to the court that the special advocate does not challenge the application;

(b) the court—

(i) has previously considered an application for permission to withhold the same or substantially the same material; and

(ii) is satisfied that it would be just to give permission without a hearing; or

(c) [F3 the appropriate Minister] and the special advocate consent to the court deciding the issue without a hearing.

(2) If the special advocate does not challenge the application, the special advocate must give notice of that fact to the court and to [F3 the appropriate Minister]—

(a) within 14 days after [F3 the appropriate Minister] [F5 serves] on the special advocate the material under rule 79.25(2); or

(b) within such other period as the court may direct.

(3) Where the court fixes a hearing under paragraph (1)—

(a) the special advocate may file with the court and serve on [F3 the appropriate Minister] a reply to [F6 the appropriate Minister’s] application;

(b) [F3 the appropriate Minister] may file with the court and serve on the special advocate a response to the special advocate’s reply; and

(c) [F3 the appropriate Minister] and the special advocate must file with the court at least 7 days before the hearing a schedule identifying the issues which cannot be agreed between them and which must—

(i) give brief reasons for their contentions on each issue in dispute; and

(ii) set out any proposals for the court to resolve the issues in dispute.

(4) A hearing under this rule must take place in the absence of the specially represented party and that party’s legal representative.

(5) The court will give permission to [F3 the appropriate Minister] to withhold closed material where it considers that disclosure of that material would be contrary to the public interest.

(6) Where the court gives permission to [F3 the appropriate Minister] to withhold closed material, the court will—

(a) consider whether to direct [F3 the appropriate Minister] to serve a summary of that material on the specially represented party or that party’s legal representative; but

(b) ensure that such a summary does not contain material, the disclosure of which would be contrary to the public interest.

(7) Where the court does not give permission to [F3 the appropriate Minister] to withhold closed material from, or directs [F3 the appropriate Minister] to serve a summary of that material on, the specially represented party or that party’s legal representative—

(a) [F3 the appropriate Minister] [F7 is] not required to serve that material or summary; but

(b) if [F8 the appropriate Minister does] not do so, at a hearing on notice, the court may—

(i) where it considers that the material or anything that is required to be summarised might adversely affect [F9 the appropriate Minister’s] case or supports the case of the specially represented party, direct that [F3 the appropriate Minister] must not rely on such material in [F10 the appropriate Minister’s] case, or must make such concessions or take such other steps, as the court may specify; or

(ii) in any other case, direct that [F3 the appropriate Minister] [F11 does] not rely on the material or (as the case may be) on that which is required to be summarised.]

Textual Amendments

F1 Pt. 79 inserted (4.12.2008) by The Civil Procedure (Amendment No.2) Rules 2008 (S.I. 2008/3085), rule 1, Sch.

F2 Words in rule 79.26 heading substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(a)

F3 Words in rule 79.26 substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(b)

F4 Word in rule 79.26(1) substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(c)

F5 Word in rule 79.26(2)(a) substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(d)

F6 Words in rule 79.26(3)(a) substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(e)

F7 Word in rule 79.26(7)(a) substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(f)(i)

F8 Words in rule 79.26(7)(b) substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(f)(ii)(aa)

F9 Words in rule 79.26(7)(b) substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(f)(ii)(bb)

F10 Words in rule 79.26(7)(b) substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(f)(ii)(cc)

F11 Word in rule 79.26(7)(b) substituted (1.3.2019) by The Civil Procedure (Amendment) (EU Exit) Rules 2019 (S.I. 2019/147), rules 1, 3(19)(f)(ii)(dd)