The Civil Procedure Rules 1998

[F1 SECTION II E+W General provisions

Textual Amendments

F1 Pt. 82 inserted (27.6.2013) by The Civil Procedure (Amendment No. 5) Rules 2013 (S.I. 2013/1571), rule 1, Sch.

Scope of this Section E+W

82.4.   This Section applies, except where otherwise indicated, to the proceedings mentioned in rule 82.1.

Case management E+W

82.5.   Proceedings to which this Section applies are to be treated as allocated (or, as the case may be, re-allocated) to the multi-track.

Hearings in private E+W

82.6.— (1) If the court considers it necessary for any party and that party’s legal representative to be excluded from any hearing or part of a hearing in order to secure that information is not disclosed where disclosure would be damaging to the interests of national security, it must—

(a) direct accordingly; and

(b) conduct the hearing, or that part of it from which that party and that party’s legal representative are excluded, in private but attended by a special advocate to represent the interests of the excluded party.

(2) The court may conduct a hearing or part of a hearing in private for any other good reason.

Notification of hearings E+W

82.7.   Unless the court directs otherwise, it must serve notice of the date, time and place fixed for any hearing on—

(a) every party, whether or not entitled to attend that hearing; and

(b) the special advocate or those instructing the special advocate.

Proceedings which must be determined at a hearing E+W

82.8.   The following proceedings must, unless the court directs otherwise, be determined at a hearing—

(a) an application by the Secretary of State under section 6(2) of the Act for a declaration;

(b) a closed material application;

(c) a review of the court’s own motion under section 7 of a declaration made under section 6 of the Act;

(d) a formal review under section 7(3) of the Act of a declaration made under section 6 of the Act;

(e) an application under section 7 of the Act for revocation of a declaration made under section 6 of the Act;

(f) an application under section 18(1) of the Act to have a certificate issued under section 17(3)(e) of the Act set aside;

(g) an appeal to the Court of Appeal from a decision or order of the High Court made in any of the proceedings mentioned in paragraphs (a) to (f) above.

Appointment of a special advocate E+W

82.9.— (1) Subject to paragraphs (2) and (3), where—

(a) the Secretary of State decides to make an application under section 6(2) of the Act for a declaration; or

(b) the Secretary of State receives written notice under rule 82.21 (notification of intention to make application for a declaration) that a party other than the Secretary of State intends to make such an application; or

(c) the Secretary of State receives written notice under rule 82.31 (review of certification) of an application under section 18(1) of the Act to have a certificate issued under section 17(3)(e) of the Act set aside,

the Secretary of State must immediately give notice of the proceedings to the Attorney General (who, under section 9(1) of the Act, has the power to appoint a special advocate).

(2) Paragraph (1) applies unless a special advocate has already been appointed to represent the interests of the specially represented party in the proceedings and that special advocate is not prevented from communicating with that party by virtue of rule 82.11 (special advocate: communicating about proceedings).

(3) Paragraph (1) applies whether the proceedings are in the High Court or the Court of Appeal.

(4) Where any proceedings to which this Section applies are pending but no special advocate has been appointed, any party or the Secretary of State may request that the Attorney General appoint a special advocate.

Functions of a special advocate E+W

82.10.   The functions of a special advocate are to represent the interests of a specially represented party by—

(a) making submissions to the court at any hearing or part of a hearing from which the specially represented party and the specially represented party’s legal representatives are excluded;

(b) adducing evidence and cross-examining witnesses at any such hearing or part of a hearing;

(c) making applications to the court or seeking directions from the court where necessary; and

(d) making written submissions to the court.

Special advocate: communicating about proceedings E+W

82.11.— (1) The special advocate may communicate with the specially represented party or the specially represented party’s legal representative at any time before a relevant person serves sensitive material on the special advocate.

(2) After the relevant person serves sensitive material on the special advocate, the special advocate must not communicate with any person about any matter connected with the proceedings, except in accordance with paragraph (3) or (6)(b) or with a direction of the court pursuant to a request under paragraph (4).

(3) The special advocate may, without directions from the court, communicate about the proceedings with—

(a) the court;

(b) the relevant person (where this is not the Secretary of State);

(c) the Secretary of State or any person acting for the Secretary of State;

(d) the Attorney General or any person acting for the Attorney General; or

(e) any other person, except the specially represented party or the specially represented party’s legal representative, with whom it is necessary for administrative purposes for the special advocate to communicate about matters not connected with the substance of the proceedings.

(4) The special advocate may request directions from the court authorising the special advocate to communicate with the specially represented party or the specially represented party’s legal representative or with any other person.

(5) Where the special advocate makes a request for directions under paragraph (4)—

(a) the court must notify the relevant person, and (where the relevant person is not the Secretary of State) the Secretary of State, of the request and of the content of the proposed communication and the form in which it is proposed to be made; and

(b) the relevant person or the Secretary of State or each of them (where each wishes to object) must, within a period specified by the court, file with the court and serve on the special advocate notice of any objection which the relevant person or the Secretary of State has to the proposed communication or to the form in which it is proposed to be made.

(6) Paragraph (2) does not prohibit the specially represented party from communicating with the special advocate after the relevant person has served material on the special advocate, but—

(a) the specially represented party may only communicate with the special advocate in writing through the specially represented party’s legal representative; and

(b) the special advocate must not reply to the communication other than in accordance with directions of the court, except that the special advocate may without such directions send a written acknowledgment of receipt to the specially represented party’s legal representative.

Evidence in proceedings to which this Part applies E+W

82.12.— (1) Subject to the other rules in this Part, the evidence of a witness may be given either—

(a) orally before the court; or

(b) in writing, in which case it must be given in such manner and at such time as the court directs.

(2) The court may also receive evidence in documentary or any other form.

(3) The court may receive evidence that would not, but for this rule, be admissible in a court of law.

(4) Every party is entitled to adduce evidence and to cross-examine witnesses during any hearing or part of a hearing from which that party and that party’s legal representatives are not excluded.

(5) A special advocate is entitled to adduce evidence and to cross-examine a witness only during a hearing or part of a hearing from which the specially represented party and the specially represented party’s legal representatives are excluded.

(6) The court may require a witness to give evidence on oath.

Sensitive material E+W

82.13.— (1) The relevant person—

(a) must apply to the court for permission to withhold sensitive material from a specially represented party or the specially represented party’s legal representative in accordance with this rule; and

(b) may not rely on sensitive material at a hearing on notice unless a special advocate has been appointed to represent the interests of the specially represented party.

(2) The relevant person must file with the court and, at such time as the court directs, serve on the special advocate—

(a) the sensitive material; and

(b) a statement of the relevant person’s reasons for withholding that material from the specially represented party and the specially represented party’s legal representatives.

(3) The relevant person may at any time amend or supplement material filed under this rule, but only with—

(a) the agreement of the special advocate; or

(b) the permission of the court.

Consideration of closed material application or of objection to special advocate’s communication E+W

82.14.— (1) This rule applies where the relevant person or, as the case may be, the Secretary of State has—

(a) applied under rule 82.13 (sensitive material) for permission to withhold sensitive material; or

(b) objected under rule 82.11(5)(b) (special advocate: communicating about proceedings) to a proposed communication by the special advocate.

(2) The court must fix a hearing for the relevant party, the Secretary of State and the special advocate to make oral representations, unless—

(a) the special advocate gives notice that he or she does not challenge the application or objection;

(b) the court has previously, in determining the application under section 6(2) of the Act for a declaration, found that the first condition in section 6 of the Act is met in relation to the same or substantially the same material and is satisfied that it would be just to give permission without a hearing;

(c) the court has previously considered—

(i) an application under rule 82.13(1) for permission to withhold the same or substantially the same material; or

(ii) an objection under rule 82.11(5)(b) to the same or substantially the same proposed communication; and

is satisfied that it would be just to give permission or uphold the objection without a hearing; or

(d) the relevant person, the Secretary of State and the special advocate consent to the court deciding the application or objection without a hearing.

(3) If the special advocate does not challenge the application or the objection, he or she must give notice of that fact to the court, the relevant person and the Secretary of State no later than the end of—

(a) 14 days after the date on which the relevant person or the Secretary of State serves on the special advocate the notice under rule 82.11(5)(b) or the material under rule 82.13(2), or

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

(4) Where the court fixes a hearing under this rule, the relevant person, the Secretary of State and the special advocate must before the hearing file with the court a schedule identifying the issues which cannot be agreed between them, which must also—

(a) give brief reasons for their contentions in relation to each issue; and

(b) set out any proposals for the court to resolve those issues.

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

(6) Where the court has, in determining an application under section 6(2) of the Act for a declaration, found that the first condition in section 6 of the Act is met in relation to any material, it may give permission to withhold that material without a hearing in relation to that material, whether or not a hearing is required in relation to any other material.

(7) Where the court gives permission to the relevant person to withhold sensitive material, the court—

(a) must consider whether to direct the relevant person to serve a summary of that material on the specially represented party and the specially represented party’s legal representative; but

(b) must ensure that any such summary does not contain material the disclosure of which would be damaging to the interests of national security.

(8) If the court is satisfied that—

(a) the relevant person does not intend to rely on sensitive material, and

(b) that material does not adversely affect the relevant person’s case or support the case of another party to the proceedings,

the court may direct that the relevant person must not rely in the proceedings on that material, without the court first requiring the relevant person to serve a summary of that material on the specially represented party and the specially represented party’s legal representative.

(9) Where the court has not given permission to the relevant person to withhold sensitive material from, or has directed the relevant person to serve a summary of that material on, the specially represented party and the specially represented party’s legal representative—

(a) the relevant person shall not be required to serve that material or summary; but

(b) if the relevant person does not do so, at a hearing on notice the court may—

(i) if it considers that the material or anything that is required to be summarised might adversely affect the relevant person’s case or support the case of another party to the proceedings, direct that the relevant person is not to rely on such points in the relevant person’s case, or that the relevant person makes such concessions or takes such other steps as the court may direct; and

(ii) in any other case, direct that the relevant person must not rely in the proceedings on that material or (as the case may be) on what is required to be summarised.

(10) The court must give permission to the relevant person to withhold sensitive material where it considers that disclosure of that material would be damaging to the interests of national security.

Failure to comply with directions E+W

82.15.— (1) Where a party or the special advocate fails to comply with a direction of the court, the court may serve on that person a notice which states—

(a) the respect in which that person has failed to comply with the direction;

(b) a time limit for complying with the direction; and

(c) that the court may proceed to determine the proceedings before it on the material before it if that person fails to comply with the direction within that time limit.

(2) Where a party or the special advocate fails to comply with the direction after such a notice, the court may proceed in accordance with paragraph (1)(c).

Judgments E+W

82.16.— (1) Where the court gives judgment in any proceedings to which this Section applies, it may withhold any, or any part, of its reasons if and to the extent that it is not possible to give those reasons without disclosing information the disclosure of which would be damaging to the interests of national security.

(2) Where the judgment of the court does not include the full reasons for its decision, the court must serve on the relevant person, the Secretary of State (where not the relevant person) and the special advocate a separate written judgment giving those reasons.

Application by the Secretary of State or relevant person for reconsideration of decision E+W

82.17.— (1) If the court proposes, in any proceedings to which this Section applies, to serve on a specially represented party—

(a) notice of any order or direction made or given in the absence of the Secretary of State or, if the relevant person is not the Secretary of State, the absence of the relevant person; or

(b) any written judgment;

then before the court serves any such notice or judgment on the specially represented party, it must first serve notice on the Secretary of State and, if the relevant person is not the Secretary of State, on the relevant person, of its intention to do so.

(2) The Secretary of State or relevant person may, within 5 days of being served with notice under paragraph (1), apply to the court to reconsider the terms of the order or direction or to review the terms of the proposed judgment if the Secretary of State or relevant person considers that—

(a) the Secretary of State or relevant person’s compliance with the order or direction; or

(b) the notification to the specially represented party of any matter contained in the judgment, order or direction,

would cause information to be disclosed where such disclosure would be damaging to the interests of national security.

(3) Where the Secretary of State or relevant person makes an application under paragraph (2), the Secretary of State or relevant person must at the same time serve on the special advocate—

(a) a copy of the application; and

(b) a copy of the notice served on the Secretary of State or relevant person pursuant to paragraph (1).

(4) Rule 82.14 (consideration of closed material application or of objection to special advocate’s communication), except for paragraphs (6) to (8) of that rule, applies with any necessary modifications to the consideration of an application under paragraph (2) of this rule.

(5) The court must not serve notice or a written judgment on the specially represented party as mentioned in paragraph (1) before the time for the Secretary of State or relevant person to make an application under paragraph (2) has expired.

Supply of court documents E+W

82.18.   Unless the court otherwise directs, rule 5.4 (Register of Claims), rule 5.4B (supply of documents from court records – a party) and rule 5.4C (supply of court documents – a non-party) do not apply to any proceedings to which this Section applies.]