The Civil Procedure Rules 1998

[F1 SECTION IV E+W General provisions

Textual Amendments

F1 Pt. 88 inserted (27.2.2015) by The Civil Procedure (Amendment) Rules 2015 (S.I. 2015/406), rule 1, Sch.

Scope of this Section E+W

88.16.   This Section applies to

(a) TEO proceedings in the High Court; and

(b) appeals to the Court of Appeal against an order of the High Court in such proceedings.

Address for filing proceedings E+W

88.17.— (1) Any TEO proceedings must be filed at the Administrative Court Office, Room C315, Royal Courts of Justice, Strand, London WC2A 2LL.

(2) Any appeals to the Court of Appeal against an order of the High Court in TEO proceedings must be filed at the Civil Appeals Office, Room E307, Royal Courts of Justice, Strand, London WC2A 2LL.

Applications for anonymity E+W

88.18.— (1) The TEO subject or the Secretary of State may apply for an order requiring anonymity for the TEO subject.

(2) An application under paragraph (1) may be made at any time, irrespective of whether any TEO proceedings have been commenced.

(3) An application may be made without notice to the other party.

(4) The reference in this rule to an order requiring anonymity for the TEO subject is to be construed in accordance with paragraph 6(3) of Schedule 3 to the Act.

Notification of hearings E+W

88.19.   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) if one has been appointed for the purposes of the hearing, the special advocate or those instructing the special advocate.

Proceedings which must be determined at a hearing E+W

88.20.— (1) The following proceedings must be determined at a hearing—

(a) a review application under section 11 of the Act (review of decisions relating to temporary exclusion orders);

(b) an appeal to the Court of Appeal from a decision or order of the High Court made in the proceedings mentioned in sub-paragraph (a) above; and

(c) a hearing under rule 88.28(2) (consideration of the Secretary of State’s objection or application.

(2) Paragraph (1)(b) does not apply where—

(a) the appeal is withdrawn by the appellant;

(b) the Court of Appeal allows the appeal with consent; or

(c) the Court of Appeal strikes out the appeal.

Hearings in private E+W

88.21.— (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 contrary to the public interest, 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.

Appointment of a special advocate E+W

88.22.— (1) Subject to paragraph (2), the Secretary of State must immediately give notice of the proceedings to the Attorney General (who, under paragraph 10(1) of Schedule 3 to the Act, has the power to appoint a special advocate), on—

(a) making an application under section 3(1)(b) of the Act (application for permission to impose a TEO);

(b) making a reference under paragraph 3(1) of Schedule 2 to the Act (reference of urgent TEO imposed without permission); or

(c) being served with a copy of any applications, claim or notice of appeal in proceedings to which this Part applies.

(2) Paragraph (1) applies unless—

(a) the Secretary of State does not intend to—

(i) oppose the application, claim or appeal; or

(ii) withhold closed material from a relevant party; or

(b) a special advocate has already been appointed to represent the interests of the relevant party in the proceedings and that special advocate is not prevented from communicating with that party by virtue of rule 88.24 (special advocate: communicating about proceedings).

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

Functions of a special advocate E+W

88.23.   The functions of a special advocate are to represent the interests of a relevant party by—

(a) making submissions to the court at any hearing or part of a hearing from which the relevant party and the relevant party’s legal representative 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

88.24.— (1) The special advocate may communicate with the relevant party or the relevant party’s legal representative at any time before the Secretary of State serves closed material on the special advocate.

(2) After the relevant person serves closed 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 Secretary of State or any person acting for the Secretary of State;

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

(d) any other person, except the relevant party or the relevant 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 relevant party or the relevant 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 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 Secretary of State must, within a period specified by the court, file with the court and serve on the special advocate notice of any objection which 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 relevant party from communicating with the special advocate after the Secretary of State has served material on the special advocate, but—

(a) the relevant party may only communicate with the special advocate in writing through the relevant 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 relevant party’s legal representative.

Modification of the general rules of evidence and disclosure E+W

88.25.— (1) Part 31 (disclosure and inspection of documents), Part 32 (evidence) and Part 33 (miscellaneous rules about evidence) do not apply to any proceedings to which this Part applies.

(2) 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.

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

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

(5) 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.

(6) 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 relevant party and the relevant party’s legal representatives are excluded.

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

Filing and service of relevant material E+W

88.26.   The Secretary of State must—

(a) make a reasonable search for relevant material; and

(b) file and serve that material in accordance with the rules in this Part.

Closed material E+W

88.27.— (1) The Secretary of State—

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

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

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

(a) the closed material;

(b) a statement of the Secretary of State’s reasons for withholding that material from the relevant party and the relevant party’s legal representatives; and

(c) if the Secretary of State considers it possible to provide a summary of that material without disclosing information contrary to the public interest, a summary of that material in a form which can be served on the relevant party.

(3) The Secretary of State 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 the Secretary of State’s objection or application E+W

88.28.— (1) This rule applies where the Secretary of State has—

(a) objected under rule 88.24(5)(b) (special advocate: communicating about proceedings) to a proposed communication by the special advocate; or

(b) applied under rule 88.27 (closed material) for permission to withhold closed material.

(2) The court must fix a hearing for 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 considered—

(i) an objection under rule 88.24(5)(b) to the same or substantially the same proposed communication; or

(ii) an application under rule 88.27(1) for permission to withhold the same or substantially the same material; and

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

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

(3) If the special advocate does not challenge the objection or the application, he or she must give notice of that fact to the court 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 88.24(5)(b) or the material under rule 88.27(2); or

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

(4) Where the court fixes a hearing under this rule, 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 relevant party and the relevant party’s legal representative.

(6) Where the court gives permission to the Secretary of State to withhold sensitive material, the court must—

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

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

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

(a) the Secretary of State shall not be required to serve that material or summary; but

(b) if the Secretary of State 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 be of assistance to the relevant party in relation to a matter under consideration by the court, direct that the matter is withdrawn from its consideration or that the Secretary of State makes such concessions or takes such other steps as the court may direct; and

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

(8) The court must give permission to the Secretary of State to withhold sensitive material where it considers that disclosure of that material would be contrary to the public interest.

Order of filing and serving material and written submissions E+W

88.29.   Subject to any directions given by the court, the parties must file and serve any material and written submissions, and the special advocate must file and serve any written submissions, in the following order—

(a) the Secretary of State must file with the court any relevant material of which the Secretary of State is aware;

(b) the Secretary of State must serve on—

(i) the relevant party or the relevant party’s legal representative; and

(ii) the special advocate (as soon as one is appointed) or those instructing the special advocate,

any open material;

(c) the relevant party must file with the court and serve on the Secretary of State and special advocate (if one is appointed) or those instructing the special advocate any written evidence which the relevant party wishes the court to take into account at the hearing;

(d) the Secretary of State must file with the court any further relevant material;

(e) the Secretary of State must serve on—

(i) the relevant party or the relevant party’s legal representative; and

(ii) the special advocate (as soon as one is appointed) or those instructing the special advocate,

any open material filed with the court under sub-paragraph (d);

(f) the Secretary of State must serve on the special advocate (if one has been appointed) any closed material;

(g) the parties and the special advocate (if one has been appointed) must file and serve any written submissions as directed by the court.

(Rules 88.27 and 88.28 will apply where any closed material is filed by the Secretary of State.)

Failure to comply with directions E+W

88.30.— (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

88.31.— (1) Where the court gives judgment in any proceedings to which this Part 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 contrary to the public interest.

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

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

88.32.— (1) If the court proposes, in any proceedings to which this Part applies, to serve on a relevant party—

(a) notice of any order or direction made or given in the absence of the Secretary of State; or

(b) any written judgment;

then before the court serves any such notice or judgment on the relevant party, it must first serve notice on the Secretary of State of its intention to do so.

(2) The Secretary of State 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 considers that—

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

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

would cause information to be disclosed contrary to the public interest.

(3) Where the Secretary of State makes an application under paragraph (2), the Secretary of State must at the same time serve on the special advocate (if one has been appointed)—

(a) a copy of the application; and

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

(4) Rule 88.28 (consideration of Secretary of State’s objection or application), except for paragraphs (6) and (7) of that rule, applies where a special advocate has been appointed and 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 relevant 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

88.33.   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 Part applies.]