COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Collins
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE DYSON
LORD JUSTICE STANLEY BURNTON
| The Secretary of State for Communities and Local Government
Herefordshire District Council
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Gordon Nardell, Advocate to the Court (instructed by Treasury Solicitors)
Hearing date : 21st January 2009
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Lord Justice Waller and Lord Justice Dyson :
Overview on Practice Directions and the Rules
"5. (1) Practice directions may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by Civil Procedure Rules.
(2) After section 74 of the County Courts Act 1984 there is inserted
74A (1) Directions as to the practice and procedure of county courts may be made by the Lord Chancellor.
(2) Directions as to the practice and procedure of county courts may not be made by any other person without the approval of the Lord Chancellor
(3) The power of the Lord Chancellor to make directions under subsection (1) includes power
(a) to vary or revoke directions made by him or any other person, and
(b) to make different provision for different cases or different areas, including different provision
(i) for a specific court, or
(ii) for specific proceedings, or a specific jurisdiction,
specified in the directions.
(4) References in this section to the Lord Chancellor include any person authorised by him to act on his behalf."
"Three distinct situations are envisaged. First, a new section 74A is added to the County Courts Act 1984 giving power to the Lord Chancellor to make directions as to the practice and procedure of the county courts. Secondly it is enacted that practice directions may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by rules; this is a very limited provision since paragraph 3 refers only to the transfer of proceedings within the High Court or between County Courts. Thirdly, paragraph 6 of Schedule 1 provides that "Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions."
In none of its references to practice directions does the Act condescend to give the phrase a meaning, and only in reference to the County Courts does it say by whom they are to be made. There is nothing to suggest that the Civil Procedure Rule Committee itself has power to make practice directions, and the court's traditional extra-statutory power survives unscathed. Now, however, the Act has created an additional, statutory, power to make directions under the Civil Procedure Rules, and that power, presumably, inheres in the court."
"(15) Significantly for the purposes of this case, s 4 contains what was formerly known as a 'Henry VIII clause'. Section 4(l) allows the Lord Chancellor by order to amend, repeal or revoke any enactment in consequence of ss 1 and 2 and the Civil Procedure Rules 1998 themselves; this power is to be exercisable by Statutory Instrument and subject to annulment by negative resolution: see s 4(3), (4). Section 4(2) also allows him by order to amend, repeal or revoke any enactment passed or made before the section came into force, in order to facilitate the making of Civil Procedure Rules 1998. Orders made under this wider power have to receive the positive approval of each House of Parliament: see s 4(5).
(16) Section 5 of the 1997 Act is headed 'Practice Directions'. Under s 5(1), 'Practice Directions may provide for any matter which, by virtue of para 3 of Sch 1, may be provided for by Civil Procedure Rules'. Paragraph 3 of Sch 1 allows the Civil Procedure Rules 1998 to deal with 'Removal of Proceedings' within the High Court and between county courts. This would not normally be done by Rules of Court, still less by Practice Directions. Mr Burrows speculates in his skeleton argument that the reference to para 3 may be a misprint. Misprints in Acts of Parliament are extremely rare. In my view, the express grant of a power to do this by Civil Procedure Rules 1998 and by Practice Direction was deliberate, as otherwise there might be doubt about whether it was a matter of 'practice and procedure' which could properly be dealt with in that way.
(17) Section 5(2) inserts a new s 74A in the County Courts Act 1984 dealing with Practice Directions in county courts. Section 74A(1) gives power to the Lord Chancellor to make directions as to the practice and procedure of county courts. Section 74A(2) forbids anyone else to make such directions without his approval. Previously, all courts had an inherent power to regulate their own practice and procedure: see Langley v North West Water Authority  1 WLR 697. Local county court protocols, such as that upheld by this court in Langley, now require approval. Section 74A(4) allows the Lord Chancellor to delegate his powers under the section.
(18) Commenting on s 74A, the editors of The White Book Service 2000, Civil Procedure, Vol 2, para 9A-840, point out that 'In the High Court, practice directions are issued by the heads of division in the exercise of inherent power'. The development of the use of such Practice Directions despite the existence of statutory rule making bodies is discussed by Professor Jolowicz, in Practice Directions and the Civil Procedure Rules (CLJ 53, 2000), to which we were helpfully referred.
(19) Finally, para 6 of Sch 1 to the 1997 Act provides that 'Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions'. This tells us nothing about who may make such directions or what they may contain. Section 9(2) defines 'Practice Directions' as 'directions as to the practice and procedure of any court within the scope of the Civil Procedure Rules' thus taking the present matter no further.
(20) It seems clear, therefore, that there is no separate category of Practice Direction for which new vires are given by the 1997 Act (as opposed to the extension in s 5(1) of what may be done by existing categories of Practice Direction). The civil procedure Practice Directions are made for the county courts under s 74A of the County Courts Act 1984 and for the High Court under the inherent power of the Heads of Division. The Lord Chancellor has delegated his powers under s 74A, at first to Sir Richard Scott V-C (as he then was), as Head of Civil Justice, and subsequently to May LJ, as Deputy Head of Civil Justice. Thus the Civil Procedure Practice Directions are in fact made by the Lord Chief Justice, the Master of the Rolls (so far as they affect civil appeals), the Vice-Chancellor and the Head or Deputy Head of Civil Justice. It is perhaps unfortunate that this process is not made clear, as it is in other Practice Directions, in the official versions published by the Lord Chancellor's Department and reproduced in the textbooks. A good example is the President's Practice Direction about costs in family proceedings (Practice Direction: Civil Procedure Rules 1998: Allocation of Cases: Costs  1 FLR 1295, sub nom Practice Direction (Family Proceedings: Allocation and Costs)  1 WLR 1128), mentioned in para (11) above, which is signed by the President and states that it has the approval of the Lord Chancellor and can thus apply in county courts as well as the Family Division of the High Court.
(21) Unlike the Lord Chancellor's orders under his 'Henry VIII' powers, the Civil Procedure Rules 1998 themselves and the 1991 Remuneration Regulations, the Practice Directions are not made by Statutory Instrument. They are not laid before Parliament or subject to either the negative or positive resolution procedures in Parliament. They go through no democratic process at all, although if approved by the Lord Chancellor he will bear ministerial responsibility for them to Parliament. But there is a difference in principle between delegated legislation which may be scrutinised by Parliament and ministerial executive action. There is no ministerial responsibility for Practice Directions made for the Supreme Court by the Heads of Division. As Professor Jolowicz says, loc cit, p 61, 'It is right that the court should retain its power to regulate its own procedure within the limits set by statutory rules, and to fill in gaps left by those rules; it is wrong that it should have power actually to legislate'.
(22) Mr Burrows relies upon the definition given to 'subordinate legislation' in the Interpretation Act 1978, s 21(1):
' "subordinate legislation" means Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act.'
He suggests that this places the Practice Directions on an equal footing with the Civil Procedure Rules 1998. He rightly points out that the Civil Procedure Rules 1998 are dependent upon the Practice Directions for their operation. They cannot work without the Practice Directions, which must therefore be assumed effectively to form part of the Rules.
(23) This is to confuse the fact that an Instrument may fall within the definition of subordinate legislation because it is 'made under' an Act of Parliament with what that Act of Parliament allows it to do. Indeed, in so far as the Practice Directions apply to the Supreme Court, they are probably not 'made under' any Act at all: the fact that the Civil Procedure Rules 1998 'may refer' to them does not mean that they are 'made under' the 1997 Act. In any event, there is nothing in s 74A of the County Courts Act 1984 or in the Civil Procedure Act 1997 to confer power upon those making Practice Directions to revoke or amend rules or regulations made by Statutory Instrument. Indeed such powers are not expressly conferred on the rule making body. The rules must be confined to the purposes for which the power to make them is granted. The only express power to revoke or amend other legislation in consequence of the Civil Procedure Rules 1998 is that given to the Lord Chancellor by s 4 of the Act.
(24) In my view, therefore, there is no need to consider whether or not the Practice Direction about Costs is inconsistent with the Remuneration Regulations 1991, because the Practice Direction has no power to override the Regulations. The question of implied amendment or repeal simply does not arise. In fact, however, it is comparatively easy to reconcile them as the judge did. The costs of preparing a bill are now to be considered allowable, because the general practice has now changed, but only up to the maximum permitted by the Regulations, which is to be taken as setting the 'reasonable cost' in the context in which the Regulations apply."
"(1) Practice directions may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
(2) Practice directions given otherwise than under subsection (1) may not be given without the approval of
(a) the Lord Chancellor, and
(b) the Lord Chief Justice
(3) Practice directions (whether given under subsection (1) or otherwise) may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by Civil Procedure Rules.
(4) The power to give practice directions under subsection (1) includes power
(a) to vary or revoke directions given by any person;
(b) to give directions containing different provision for different cases (including different areas);
(c) to give directions containing provision for a specific court for specific proceedings or for a specific jurisdiction.
(5) Subsection (2)(a) does not apply to directions to the extent that they consist of guidance about any of the following
(a) the application or interpretation of law;
(b) the making of judicial decisions."
(6) Subsection (2)(a) does not apply to directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent be given only
(a) after consulting the Lord Chancellor, and (b) with the approval of the Lord Chief Justice."
1 In this Part "designated directions" means directions under another Act which are, by virtue of provision in that Act, to be made or given in accordance with this Part.
2 (1) It is for the Lord Chief Justice, or a judicial office holder nominated by the Lord Chief Justice with the agreement of the Lord Chancellor, to make or give designated directions.
(2) The Lord Chief Justice may nominate a judicial office holder in accordance with sub-paragraph (1)
(a) to make or give designated directions generally, or
(b) to make or give designated directions under a particular enactment.
(3) In this Part
(a) "judicial office holder" has the same meaning as in section 109(4);
(b) references to the Lord Chief Justice's nominee, in relation to designated directions, mean a judicial office holder nominated by the Lord Chief Justice under sub-paragraph (1) to make or give those directions.
3 (1) The Lord Chief Justice, or his nominee, may make or give designated directions only with the agreement of the Lord Chancellor.
(2) Sub-paragraph (1) does not apply to designated directions to the extent that they consist of guidance about any of the following
(a) the application or interpretation of the law;
(b) the making of judicial decisions.
(3) Sub-paragraph (1) does not apply to designated directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be made or given only after consulting the Lord Chancellor."
". . .Generally, under the process set out in Pt.1 of Sch.2 to the 2005 Act, CPR Practice Directions are made by the Lord Chief Justice. The Lord Chief Justice, with the agreement of the Lord Chancellor, may nominate another judicial office holder to exercise his power to make practice directions. In relation to the making of CPR Practice Directions, with effect from April 3, 2006 the Master of the Rolls was so nominated. (Before that date, the powers of the Master of the Rolls in this respect were confined to the making of directions for the Court of Appeal (Civil Division), and comparable powers for the Queen's Bench and Chancery Divisions of the High Court were exercised by, respectively, the Lord Chief justice and the Vice-Chancellor.) Subject to certain exceptions, the Lord Chief justice or his nominee may make or give practice directions only with the agreement of the Lord Chancellor. The exceptions are stated in sub-paras (2) and (3) of para.3 in Pt.1 of Sch.2 to the 2005 Act.
As indicated above, practice directions may be made otherwise than under the process set out in Pt.1 of Sch.2 to the 2005 Act. There is nothing in the 1997 Act or the 2005 Act to indicate how or by whom any such alternative process may be used or invoked. However, s.5(2) states that practice directions given otherwise than under the process set out in Pt.1 of Sch.2 to the 2005 Act may not be given without the approval of the Lord Chancellor and the Lord Chief Justice. But the approval of the Lord Chancellor is not required in the circumstances referred to in subs.(5) of s.5. Furthermore, the approval of the Lord Chancellor is not required in the circumstances referred to in subs.(6) of s.5, but in those circumstances the Lord Chancellor must be consulted."
"(b) identifying the issues at an early stage;
(d) deciding the order in which issues are to be resolved;
(g) fixing timetables or otherwise controlling the progress of the case;
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently."
"The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have."
and CPR3.2 provides:-
"(2) Except where these Rules provide otherwise, the court may - (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);
(m) take any other step or make any other order for the purpose of managing the case and furthering the over-riding objective."
i) Since the rules have the force of delegated legislation, he has no power to alter them whether by judgment or practice direction; in particular cases a judge will be free to exercise case management powers under CPR 3. Those powers are given by the statutory rules, but a judge cannot simply alter the rules or practice directions with general effect.
ii) If and in so far as a practice direction has been made under section 5(1) a judge would only have power to vary the same if he was a judicial officer nominated by the Lord Chief Justice and obtained the agreement of the Lord Chancellor (see section 5(4)(a) and Pt 1 of Schedule 2). This limitation would seem only to apply to a practice direction issued under the section 5(1) procedure since there does not appear to be any embargo on one practice direction being varied or replaced by another under section 5(2) but that can only be "with the approval" of the Lord Chief Justice and the Lord Chancellor.
iii) He has power to issue a practice direction under section 5(2) but only with the approval of the Lord Chief Justice and the Lord Chancellor.
Judgment of Collins J
"8.9 Where the Part 8 procedure is followed
(a) provision is made in this Part for the matters which must be stated in the claim form and the defendant is not required to file a defence and therefore -
(i) Part 16 (statements of case) does not apply;
(ii) Part 15 (defence) does not apply [ ]" (emphasis added)
"[ ] does not apply where the claimant uses the procedure set out in Part 8 [ ]"
Application to quash certain orders, schemes, etc
22.1 This paragraph applies where the High Court has jurisdiction under any enactment, on the application of any person to quash or prohibit any
(1) order, scheme, certificate or plan of;
(2) amendment or approval of a plan of;
(3) decision of;
(4) action on the part of,
a Minister or government department.
22.7 Evidence at the hearing of an application under this paragraph is by witness statement.
22.8 The applicant must
(1) file a witness statement in support of the application in the Administrative Court within 14 days after service of the claim form; and
(2) serve a copy of the witness statement and of any exhibit on the respondent at the time of filing.
22.9 The respondent must
(1) file any witness statement in opposition to the application in the Administrative Court within 21 days after service on him of the applicant's witness statement; and
(2) serve a copy of his witness statement and of any exhibit on the applicant at the time of filing "
"32. The failure to produce this relevant material was compounded by the failure of the defendant to produce its evidence until after 5 June 2008, albeit the claim was lodged in May 2007. This was only at most 3 weeks before the hearing. It is unfortunate that the CPR do not contain any timetable for the lodging of evidence or grounds to resist the claim by either the defendant or any interested party.[NOTE This is in fact not accurate as the quotations from 8PD 22 above show ] This has meant in too many cases that such evidence and grounds has been left very much to the last minute. This is a thoroughly unsatisfactory state of affairs and is not compliant with CPR 1.1(2).
33. The court's case management powers, in particular those contained in CPR 3.1(2)(m), enable the court to make any orders to achieve a just result. When initiating a claim under ss.287 or 288 or their successors, the claimant should, if he considers it appropriate, apply in the claim for an order for directions as to the filing of any evidence and defence by the defendant or any interested party. I recognise that there is no need for the defendant, who will normally be a planning authority or the Secretary of State, to be given advance notice of any claim; indeed, the requirement that it be brought within 6 weeks will often make such advance notice somewhat impractical. Thus a somewhat longer period than is appropriate in judicial review claims, where there will usually have been advance notice, an Acknowledgement of Service and a lapse of time before permission is granted so that the defendant or interested party will have had time to prepare evidence and detailed grounds of defence, is required.
34. I am aware that the Treasury Solicitor needs some time to consider a decision letter (which may be lengthy and complicated) and must seek instructions from the inspector before advising the Secretary of State whether the claim should be conceded or resisted. Equally, no doubt, planning authorities will have to go through the same process with their legal advisors. Accordingly, the general rule will be if directions are sought that evidence and at least summary grounds of defence should be lodged with 10 weeks. If a shorter period is sought, it must be requested specifically and good reasons given for the shorter time. Equally, if the defendant or interested part wants a longer time, they should make a specific request, again giving good reasons for it."
"Claimants in T&CPA 1990 s. 287 and 288 claims should, in appropriate cases, apply in their Claim for Directions as to exchange of evidence and/or summary grounds of Defence so as to ensure that the ambit of the dispute is known in advance, so that full evidence is exchanged and so that Claimants are aware of the Defence in advance of filing Skeletons."
"It is ordered that:
The first defendant file and serve any evidence upon which she intends to rely by 4pm on 5 September 2008;
If the first defendant intends to rely upon alternative or additional grounds to those lodged by the second defendant she shall file and serve those alternative or additional grounds for resistance by 4pm on 5 September "
"13. I confess that when I dealt with this, as I did in my judgment in Dinedor Hill Action Association v Herefordshire District Council  EWHC 1741 (Admin), I had not had my attention drawn specifically to Part 8 and so I did not have in mind the requirements to serve evidence within a specified short period."
" The difficulty, frankly, is that those responsible for Part 8 and the Practice Direction have failed properly to consider the special needs of the Administrative Court and the parties to claims such as this. I am afraid I am firmly of the view that the Rules and the Practice Direction are inappropriate, and do not satisfactorily deal with the situation in these cases".
"[t]he obligation in the order to file alternative or additional grounds of resistance to those lodged by the second respondent is although the language may not be defence, in reality a defence. However one dresses it up, whether one calls it "summary grounds", whether one calls it "grounds for resistance", in reality what it doing is to do what Rule 8.9(a) says need not be done; that is to say, require a form of what is equivalent to a defence to be filed".
Collins J rejected these arguments. He began by referring to the relevant provisions in CPR Part 8 (see above) and said:
" 20. all that the Acknowledgement of Service has to do is to indicate whether the defendant contests the claim and, if the defendant seeks a different remedy, to set out in the claim form what that remedy is. That will, I would have thought, not be likely to apply in claims under sections 287 or 288.
21. With respect to those responsible for Part 8, I am bound to say that I find it difficult to understand why no more is required than that in an Acknowledgement of Service before this court. Indeed, I have some difficulty in understanding why no defence or no indication of the nature of any defence is required in cases generally
22 The obligation in the order to file alternative or additional grounds of resistance to those lodged by the second respondent is, Mr Blundell [for the Secretary of State] submits, although the language may not be defence, in reality a defence. However one dresses it up, whether one calls it "summary grounds", whether one calls it "grounds for resistance", in reality what it is doing is to do what Rule 8.9(a) says need not be done; that is to say, require a form of what is equivalent to a defence to be filed.
23. The obligation under Part 54 in judicial review cases is that a defendant's or interested party's Acknowledgement of Service should "set out a summary of his grounds" for contesting the claim. That is the wording used. It seems to me that, on its true construction, Rule 8.9(a) is indeed referring to a defence and a defence is, as Rule 8.9(a)(ii) makes clear, a defence which would otherwise be covered by Part 15. Part 15 sets out the detailed requirements that are needed for a defence. It is not suggested that that be filed, nor would it in my judgment be appropriate for the court to be faced with any application for any further particulars of whatever is lodged. But what is required, in my view, and what should be required is at the very least an indication by the defendant of the grounds of resistance. It may in an individual case be that the defendant says that a particular ground is accepted, but even if established it could not make any difference to the decision or that there was no prejudice to the claimant in the decision that was reached. However, in any event it is surely desirable and sensible that the explanation for the decision to resist is set out in as short a form as may be appropriate, at as early a stage as is reasonably possible, so that the claimant, and indeed all parties, can focus on the arguments that are going to be material before the court and the court is then assisted by knowing what the position is in that regard and in assessing how long the case is likely to last, and accordingly can exercise its powers in an appropriate and most cost effective manner.
25. As I have said, in my judgment Rule 8.9 is not, for the reasons I have indicated, a Rule which provides otherwise because what Rule 8.9 is considering is a formal defence, not an indication of the grounds for resisting the claim that is being made.
26. Thus, I am against the defendant in respect of the argument that the court has no power under the Rules to give directions as to the service of such a document. In my judgment, there is every good reason why that requirement should be made.
27. Mr Blundell says, "If nothing is said, then it can be assumed that the Secretary of State is going to dispute all the grounds that are made." That is an assumption that can I suppose be made, but it is a somewhat unhelpful approach. One may go to the grounds raised in this case, just as an example. What is said is that the inspector, for example, failed to understand or even consider the agreed existence of currently available employment floor space and that he failed to understand or take into account the applicant's evidence as to the crucial distinction between costs and so on. It surely would be helpful, if necessary in one sentence, for an indication to be given as to why that is wrong because, for example, in paragraph whatever it is of his decision the inspector clearly does deal with this matter and paragraph whatever it is indicates that he clearly had in mind the relevant matters. This will be able to be known from discussion with the inspector, which one would expect to take place when instructions are taken by the Treasury Solicitor. I am only giving this as an example. It seems to me that that sort of indication would be of obvious value because at least then everyone would know where the battle lines are drawn and it might save considerable effort and time in dealing with every possible construction of a particular matter. Obviously, each case will depend upon its own facts or, perhaps I should say, on its own assertions of unlawfulness. But as a general principle I am entirely satisfied that there is a need for orders such as this one made by Deputy Master Knapman as a general proposition and that there is power in this court to make them".
"33. I recognise the force of that and generally speaking, of course, all matters of practice ideally should be dealt with by the Rules Committee. But having said that, one recognises that it sometimes takes rather longer than one would hope for the matters to be dealt with and that the Administrative Court in a number of respects has its own special requirements, which I regret to say have not always been properly taken on board by the Rules and which are not reflected in the present Part 8 and the Practice Direction under it.
34. What I propose to do in those circumstances is to indicate that there will be an expectation until the matter is dealt with through representations and the representations are considered, that the defendants ought to think in terms of serving grounds for resistance, however short, within the same period of ten weeks. If they do not and there is a good reason for the claimants to think that they are likely to be prejudiced or there is a real requirement in the interests of proper case management for such a service and it is not done within ten weeks, then a specific application can be made to the court and the court will if necessary make such an order. In the meantime I shall make arrangements for representations to be made by the Treasury Solicitor, by someone who is enabled to put forward the interests of local planning authorities, by someone who is able to do the same on behalf of developers, who are obviously affected, and perhaps by a representative of the planning Bar as well
38. I shall also take steps to have this matter put before the Rules Committee, but it seems sensible to await the representations so that one knows what can be put to the Rules Committee, so that they can avoid taking extra time in finding out what the parties' views are."
"40. It seems to me that where the defendant chooses not to put in any grounds for resisting and thus one assumes that the grounds as set out in the claim form represent the way in which it is to be put by the claimant, it must be for the defendant to put in the first skeleton. There is no point, as it seems to me, in requiring the claimant to put in a skeleton first. The claim form should and does set out, albeit it may be said in rather short form, the grounds upon which the claimant relies. Accordingly, I take the view that in this case, and I suspect in many cases, the obligation will be for the defendant to put in the first skeleton.
45. I should add that even if I were wrong about the court's power and Mr Blundell's argument in relation to no requirement for a defence were accepted, there is nothing in the Rules that prevents defendants from putting in grounds for resistance and in my view there is every reason why they should do so, voluntarily if necessary. The sanction if they do not may be that if as a result extra costs have been incurred because of a last minute indication as to what actually the issues were, the court has power under the costs rules to make orders which reflect that. It may well be that a defendant who does not voluntarily put in an appropriate case an indication of what the grounds of resistance are may find himself deprived, if he succeeds, of some part of his costs or ordered to pay extra costs in given circumstances."
Lord Justice Stanley Burnton
"The residual jurisdiction which we have been considering is one which should only be exercised with the permission of this court. Accordingly a party seeking to reopen a decision of this court, whether refusing permission to appeal or dismissing a substantive appeal, must apply in writing for permission to do so. The application will then be considered on paper and only allowed to proceed if after the paper application is considered this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application. The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end."
The italics are mine. The direction was clearly mandatory. Taylor v Laurence was of course decided before the amendment of the 1997 Act by the Constitutional Reform Act 2005, and Lord Woolf CJ was able to issue that direction without obtaining the approval of the Lord Chancellor. R (Corner House Research) v Secretary of State for Trade and Industry  EWCA Civ 192  1 WLR 2600 was similarly decided before the coming into force of the 2005 Act.
It is of great importance that issues relating to permission to appeal and to a PCO and a consequent cost capping order or orders should all be considered at the same time and on paper. This should avoid further hearings of the kind which has taken place here. Such further hearings should be very rare.
This was not a direction: compare it with the above citation from Taylor v Lawrence. Directions had, however, been given by the Court of Appeal in the earlier case of R (Compton) v Wiltshire Primary Care Trust  EWCA Civ 749 at  and . The judgment of the Court of Appeal in that case does not refer to section 5 of the 1997 Act, and I assume that it was not brought to their attention.