The Civil Procedure Rules 1998

[F1 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 [F2 or to the form in which it is proposed to be made]; 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 F3 ... 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 [F4 Secretary of State] 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.]

Textual Amendments

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

F2 Words in rule 88.28(1)(a) inserted (17.4.2015) by The Civil Procedure (Amendment No. 3) Rules 2015 (S.I. 2015/877), rules 2, 9(d)(i)

F3 Words in rule 88.28(3)(a) omitted (17.4.2015) by virtue of The Civil Procedure (Amendment No. 3) Rules 2015 (S.I. 2015/877), rules 2, 9(d)(ii)

F4 Words in rule 88.28(6)(a) substituted (17.4.2015) by The Civil Procedure (Amendment No. 3) Rules 2015 (S.I. 2015/877), rules 2, 9(d)(iii)