The Civil Procedure Rules 1998

[F1 Consideration of the Treasury’s application E+W

79.26.— (1) Where the Treasury apply in accordance with rule 79.25 for permission to withhold closed material the court will fix a hearing for the Treasury 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) the Treasury 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 the Treasury—

(a) within 14 days after the Treasury serve 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 the Treasury a reply to the Treasury’s application;

(b) the Treasury may file with the court and serve on the special advocate a response to the special advocate’s reply; and

(c) the Treasury 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 the Treasury 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 the Treasury to withhold closed material, the court will—

(a) consider whether to direct the Treasury 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 the Treasury to withhold closed material from, or directs the Treasury to serve a summary of that material on, the specially represented party or that party’s legal representative—

(a) the Treasury are not required to serve that material or summary; but

(b) if they do 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 the Treasury’s case or supports the case of the specially represented party, direct that the Treasury must not rely on such material in their case, or must make such concessions or take such other steps, as the court may specify; or

(ii) in any other case, direct that the Treasury do 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.