JUDICIAL REVIEW
PRACTICE NOTE 01/2006
16 JANUARY 2006
PART A PLEADINGS
PART B HUMAN RIGHTS ACT 1998
PART C DEVOLUTION ISSUES
PART D SKELETON ARGUMENTS
PART E PAPERS FOR HEARING
APPENDIX 1 PREPARATION OF AFFIDAVITS AND EXHIBITS
(Practice Direction 4/2005)
APPENDIX 2 SKELETON ARGUMENTS AND RELATED DOCUMENTS
(Practice Direction 5/2005)
An application for leave must be made by lodging (under O53R3(2))
(1) an ex parte docket,
(2) an Order 53 Statement
(3) affidavit(s).
(1) The O53 Statement should set out
· the name and description of the applicant
· [and should NOT include evidence or arguments]
(2) Appendix 1 sets out Practice Direction 5/2005 issued by the Lord Chief Justice on 25 July 2005 on “Preparation of Affidavits and Exhibits.” This Practice Direction applies to affidavits and exhibits filed in Judicial Review proceedings, and the following additional matters should be noted in respect of Judicial Review.
(3) The applicant’s affidavit(s) should
· set out the evidence
[and NOT the arguments]
· explain any delay in applying promptly
· refer to the applicant’s exhibits book by document number and page number if necessary.
· be accompanied by an index where there is more than one affidavit.
(4 ) The applicant’s book of exhibits.
· While there will be separate exhibits there should be one indexed and paginated book of exhibits containing all the material to be relied on by the applicant. This should include in a separate section the relevant correspondence in chronological order.
· The affidavits and the exhibits may be presented in one file. Where the volume of material requires it the affidavits and/or the book of exhibits may be divided into more than one file, with continuing pagination.
· Any later affidavit(s) filed on behalf of the applicant should be added to the earlier affidavit(s), and be included in an amended index of applicant’s affidavits. Any further exhibits should be added to the applicant’s book of exhibits, and included in an amended index of applicant’s exhibits.
· Key documents should be marked in the exhibits index with an asterisk.
· Only necessary documents should be exhibited. Copies of legislation should not be included in the exhibits.
· Relevant extracts only should be included where appropriate. The Court may disallow costs where superfluous materials are included.
(5) Notice of Motion.
· Where leave has been granted an originating motion must be issued and served within 14 days or leave lapses [O53R5(5)]. Where leave has lapsed an application for extension of time or for a further grant of leave must be made by summons and an affidavit explaining the failure to issue and serve the notice of motion in time. The Court may order costs against the party who has failed to comply with the time limits.
· The notice of motion should specify only the relief and grounds in respect of which leave has been granted. The notice should be accompanied by the O53 Statement as amended by the grant of leave, the affidavits and exhibits and the Order granting leave.
· An affidavit of service of the notice of motion should also be filed in the Office within 14 days of the grant of leave.
(6) Replying affidavits.
Replying affidavit(s) should
· set out the evidence
[and NOT the arguments]
· refer to the respondent’s book of exhibits, or to the applicant’s book of exhibits, by document number and page number if necessary.
(7) Respondent’s book of exhibits.
· There should be one indexed and paginated book of exhibits containing any additional material relied on by the respondent. Where necessary this may be divided into more than one file, with continuing pagination.
· Material contained in the applicant’s book of exhibits should not be copied into the respondent’s book of exhibits. References to material contained in the applicant’s book of exhibits should be to the document number and page number if necessary.
· Key documents should be marked in the exhibits index with an asterisk.
· If there are two or more respondents represented by the same solicitor, there should be one respondents’ book of exhibits.
· Similarly if there are notice parties or interveners filing affidavits where they are represented by the respondent(s) solicitor, there should be one respondents’ book of exhibit if possible.
· Only necessary documents should be exhibited. Copies of legislation should not be included in the exhibits.
· Relevant extracts only should be included where appropriate. The Court may disallow costs where superfluous materials are included.
(8) Interlocutory matters.
· An interlocutory application can be listed by arrangement with the office on the issue of the requisite papers.
· A case can be listed for mention by arrangement with the office. If the date has not been agreed with the other parties they should be on notice of the date for mention as the Court is unlikely to take any step in the absence of other parties being on notice.
(9) Urgent applications.
· Urgent applications during office hours may be arranged by email or telephone or fax to the Judicial Review Office at –
email address – judicialreviewoffice@courtsni.gov.uk
Tel Nos. 028 90724673 & 028 90724642
Fax No 028 90313836
Note that during office hours the preferred means of contact is by email.
· Urgent applications out of office hours may be arranged by telephone to the RCJ out of hours contact telephone number –
Tel No 028 90235111.
Note that applications out of office hours should only be arranged where it is not possible for the matter to be dealt with during office hours.
· Certificate of Urgency
Urgent applications out of term must be accompanied by a Certificate of Urgency signed by Counsel and lodged before any hearing, and may be arranged –
(during office hours) by email or telephone or fax to the Judicial Review Office at the contacts above.
Note that during office hours the preferred means of contact is by email
(outside office hours) by telephone to the RCJ out of hours contact telephone number above.
PART B - HUMAN RIGHTS ACT 1998
(1) Particulars must be given of any claim to rights under the European Convention. [O121R5]
(2) A “Convention right” is defined in section 1 of the Human Rights Act 1998 as the rights and fundamental freedoms set out in-
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, and
(c) Article 1 of the Thirteenth Protocol, as read with Articles 16 to 18 of the Convention.
(3) A party who intends to rely on a “Convention right” or rights shall state that fact and shall specify –
in the case of an applicant, in the Order 53 Statement,
in any other case, in a notice filed in the Central Office and served on the other parties,
(a) details of the Convention right(s) which it is alleged have been (or would be) infringed and details of the alleged infringement;
(b) the relief sought;
(c) whether the relief sought includes-
(i) a declaration of incompatibility; or
(ii) damages in respect of a judicial act to which section 9(3) of the Act applies;
(d) where the relief sought includes a declaration of incompatibility, details of the legislative provision(s) alleged to be incompatible and the grounds on which it is (or they are) alleged to be incompatible;
(e) where the proceedings are brought following a finding by another court or tribunal that a public authority has acted in a way which is made unlawful by section 6(1) of the Act, details of that finding;
(f) where the proceedings relate to a judicial act which is alleged to have infringed a Convention right or rights of a party as provided by section 9 of the Act, details of the judicial act complained of and of the court or tribunal which is alleged to have performed that act.
(4) An Order 121 Notice will be issued by the Court to the Crown and the parties if the Court is considering making a declaration of incompatibility of primary legislation or considering the compatibility of subordinate legislation.
For the Court to identify any compatibility issue that may arise and to comply with the notice requirement in the Rules, any party raising such an issue should specify clearly the necessary particulars in the Order 53 Statement, in the case of applicants, or in the notice, in the case of any other party.
Those particulars should be such as would serve as the foundation of the Order 121 Notice issued by the Court.
PART C - DEVOLUTION ISSUES
(1) A party raising a “devolution issue” shall specify in a notice filed in the Central Office and served on each of the parties to the proceedings the facts and circumstances and points of law on the basis of which it is alleged that the devolution issue arises, in sufficient detail to enable the Court to determine whether a devolution issue arises in the proceedings. [O120R2]
(2) A “devolution issue" is defined in Schedule 10 of the Northern Ireland Act 1998 –
(a) a question whether any provision of an Act of the Assembly is within the legislative competence of the Assembly;
(b) a question whether a purported or proposed exercise of a function by a Minister or Northern Ireland department is, or would be, invalid by reason of section 24;
(c) a question whether a Minister or Northern Ireland department has failed to comply with any of the Convention rights, any obligation under Community law or any order under section 27 so far as relating to such an obligation; or
(d) any question arising under the Act about excepted or reserved matters.
A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings if it appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.
(2) Notice by a party of a devolution issue will result in the Court giving notice to the Attorney General, the Attorney General for Northern Ireland and the appropriate Minister or department. [0120R3].
PART D - SKELETON ARGUMENTS.
PART E - PAPERS FOR THE HEARING
The applicant must file a paginated and indexed set of papers containing all relevant documents required for the hearing of the Judicial Review at least 5 working days before the hearing date. The papers for the hearing must also include those documents required by the respondent(s) and any other party who is to make representations, whether orally or in writing, at the hearing.
The papers filed in the manner referred to at Part A above may serve as the papers for the hearing, with the addition of updated indexes and the skeleton arguments and related documents.
There will be cases where the materials filed in the exchanges of affidavits are not all necessary for the hearing. At review of the case prior to hearing the Court may direct that a “core” bundle should be prepared for the hearing. Unless the Court directs otherwise, this “core” bundle should be in the form outlined above, with sections comprising applicant’s affidavit(s), applicant’s exhibits, respondent’(s)’ affidavit(s), respondent’(s)’ exhibits and notice party’s affidavit(s) and exhibits. The contents of the “core” bundle will be directed by the Court, either specifically or in general outline. It will be the responsibility of the applicant to prepare and file the “core” bundle in accordance with the directions of the Court.
APPENDIX 1
PRACTICE DIRECTION 5/2005
SUPREME COURT OF JUDICATURE OF NORTHERN IRELAND
COURT OF APPEAL (CIVIL AND CRIMINAL DIVISION)
CHANCERY DIVISION
QUEEN’S BENCH DIVISION
FAMILY DIVISION
PREPARATION OF AFFIDAVITS AND EXHIBITS
1. Practitioners and litigants in person are reminded of the need to comply with the requirements of the Rules of the Supreme Court (Northern Ireland) 1980 (“the Rules”) as to the preparation and layout of affidavits and exhibits. For convenience, some key requirements of the relevant rules are scheduled to this Direction but the list is not exhaustive.
2. Any affidavit which does not comply with the requirements of the Rules or this practice direction may be rejected by the Court or made the subject of an order for costs.
3. There should be shown at the top right hand corner of the first page of each affidavit and exhibit:
(i) the party on whose behalf it is filed;
(ii) the initials and surname of the deponent;
(iii) the number of the affidavit in relation to the deponent;
(iv) the date when sworn,
eg 2nd Defendant: A B Smith: 3rd 24.6.05.
4. It is important that a document referred to in an affidavit can be quickly and easily identified. This is especially so when there are several such documents. Where a deponent refers to more than one document, rather than each being exhibited separately a bundle of the documents should be exhibited as one exhibit and referred to, when first mentioned, accordingly (eg “... in the exhibited bundle marked ‘AB 1’ and signed by me”). The bundle should be paginated (with page numbers being consecutive at the centre bottom of each page) and indexed (with each document being given a particular number). The description of the document in the Index should conform to its description in the body of the affidavit. In the body of the affidavit the deponent, having exhibited the bundle, can either refer to a particular document by reference to its page number(s) in the bundle or by its number in the Index eg "I refer to a copy of the said Mortgage (document number 1 in the Index to the exhibited bundle)”.
5. When a deponent makes more that one affidavit to which documents are exhibited, the page numbers in the subsequent bundle and the document numbers in the Index to the subsequent bundle should follow consecutively from the previous bundle and Index thereto.
6. Clearly legible photographic copies of original documents may be exhibited instead of the originals provide the originals are made available to all parties for inspection before the hearing and to the Court at the hearing.
7. Court documents which prove themselves such as probates, letters of administration, orders and affidavits should not be exhibited though copies of such documents (except, where the hearing is before a Master, orders, affidavits and other documents already filed in the same action or proceeding) should be included in the documents lodged in court for the hearing of the matter. The originals of land certificates, documents of title, and grants of probate or letters of administration should be brought to the hearing and, subject to the direction of the Court, will be handed back immediately after perusal and notation to the party who made them available.
8. Affidavits must be so prepared that there is no likelihood of the pages becoming separated and should be bound safely together in a secure manner which does not hamper filing. If staples are used they should be used only to the extent necessary to secure the pages ie only 1 or 2 staples in the top left hand corner. Treasury tags should be avoided as should binders of a thickness disproportionate to that of the pages they secure or which would otherwise hamper filing.
9. The normal filing clause to be added to an affidavit reads:
“This affidavit is filed by X, Y and Co of (address including postcode) solicitors for the plaintiff (or as the case may be).”
10. The address (not simply the name of the town) at which the affidavit was sworn should be set out clearly in the jurat. If the signature of the person before whom the affidavit is sworn is not decipherable it should be further clarified below by means of a rubber stamp or in block capitals. It should be clearly shown whether such a person is a solicitor or a commissioner for oaths.
11. The certificate of the person before whom an affidavit is sworn must be either endorsed on the document or bundle of documents being exhibited or if on a separate sheet must be attached to the documents in the same manner as an affidavit should be bound (but without annexing the exhibit to the affidavit).
12. The following is an example of a certificate identifying an exhibit and of the short title permitted by Order 41 rule 1(2) and (3) for affidavits:
“IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND …………………. DIVISION
BETWEEN
JOHN SMITH & ORS
Plaintiff;
WILLIAM BROWN & ORS
Defendants.
This is the exhibit marked JS 1 referred to in the affidavit of John Smith sworn before me on …………………..
(Signature)
A solicitor (or Commissioner for oaths)”
13. There is no need for the deponent to sign the exhibit.
14. Where a deponent wishes to refer to a document already exhibited to some other deponent’s affidavit he should not also exhibit it to his own affidavit but refer to the exhibited document or (as the case may be) the appropriate page number in the relevant exhibited bundle of that other affidavit.
15. It is the responsibility of the solicitor or litigant in person by whom any affidavit is filed to ensure that every page of every exhibit is fully and easily legible.
16. Where at the time of the hearing the affidavits or exhibits (whether of single documents or bundles) have become numerous they should be put in a consolidated bundle or file or files and be paged consecutively throughout and indexed. The exhibits should be in a separate bundle or file.
SCHEDULE
Some key provisions of the Rules in respect of affidavits
1. Affidavits may contain statements of information or belief. Any such statements must be accompanied by statements of the sources or grounds of the information or belief and if not so accompanied are inadmissible: Order 41 rule 5; Re J. L. Young Manufacturing Co –v- Young [1900] 2 Ch. 763.
2. Every affidavit must be on A4 S10 paper of durable quality having a blank margin not less than 3.8 cm wide on the left side of the face of the paper and on the right side of the reverse (Order 66 rule 1).
3. Every affidavit must be bound in book form and, whether or not both sides of the paper are used the printed, written or typed side of the page must be numbered consecutively (Order 41 rule 1(5)).
4. Every affidavit must be divided in paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject (Order 41 rule 1(6)).
5. Dates, sums and other numbers must be expressed in an affidavit in figures and not in words (Order 41 rule 1(7)).
6. Every affidavit must be endorsed with a note showing on whose behalf it is filed and an affidavit not so endorsed may not be filed or used without the leave of the court (Order 41 rule 9(2)).
7. An affidavit which has in its jurat or body any interlineation, erasure or other alteration shall not be filed or used in any proceedings without the leave of the court unless the person before whom the affidavit was sworn has initialed the alteration and, in the case of an erasure, has re-written in the margin of the affidavit any words or figures written on the erasure and has signed or initially them (Order 41 rule 7(1)). Where an affidavit is sworn at any office of the Supreme Court, the official stamp of that office may be used instead of such signature or initials (Order 41 rule 7 (2)).
8. Exhibits must not be annexed to the affidavit (Order 41 rule 11(1)).
9. Every exhibit to an affidavit must be marked and labelled with the initials of the deponent followed by a number (rule 11(3)) and identified by a certificate of the person before whom it is sworn which certificate must bear the same title as that of the affidavit (rule 11(2)).
APPENDIX 2
Practice Direction 4/2005
SUPREME COURT OF JUDICATURE OF NORTHERN IRELAND
COURT OF APPEAL (CIVIL AND CRIMINAL DIVISIONS)
CHANCERY DIVISION
QUEEN’S BENCH DIVISION
FAMILY DIVISION
PART A - SKELETON ARGUMENTS AND RELATED DOCUMENTS
Proceedings where skeleton arguments are compulsory
3 Subject to paragraphs 4 to 5 skeleton arguments must be provided by the applicant, respondent, or other party as follows:
(a)
(b) in any judicial review proceedings;
(c)
(d)
(e)
(f) in any other proceedings where the court directs.
4 In any proceeding the court may dispense with the requirement for skeleton arguments.
5 Litigants in person, that is those applicants or respondents who do not have a solicitor or barrister, will be expected to provide skeleton arguments unless the court dispenses with the requirement. The Court will make some allowance for the fact that the litigant in person has no legal representation.
6 The Court may require the provision of a supplemental skeleton argument by the applicant, respondent, or other party.
Form and content of skeleton arguments
7 The purpose of a skeleton argument is to identify the points to be argued at hearing, not to conduct the arguments. Skeleton arguments must be typed and state:
(a) The full title and record number of the proceedings;
(b) The name of the party providing the skeleton argument;
(c) The name of counsel and the solicitor appearing on behalf of that party. (This does not apply in the case of litigants in person)
(d) Where the points in the skeleton argument arise from portions of a transcript of evidence or from police interviews, the relevant portion or portions of the transcript or police interview (that is the page of the Book of Appeal, the paragraph and line number).
(e) Where there are references to legislation; the relevant statute, article, section, regulation etc.
(f) Where there are references to authorities the proposition of law that the authority demonstrates should be clearly stated. Authorities and, if appropriate, the part of the judgment that supports the proposition should be cited with reference to the particular page number and (where available) paragraph reference for the passage in the case, textbook or journal.
8 Each skeleton argument should have the following schedules, where appropriate:
(a) A list of authorities. Full citations should be given (including of unreported cases), including page numbers and, where available, paragraph reference.
(b) A chronology of relevant events to be provided by the applicant. It will be assumed that this is agreed between the applicant and respondent unless the skeleton argument states otherwise.
(c)
(d) In complex cases a list of the key persons in the case and their part in the case.
Provision of Authorities For the Court
9 Where reference is made to a journal, textbook or a case which is not reported in any official or authorised report a copy (four copies for the Court of Appeal) of the relevant passage in the journal or textbook or of the case should be lodged together with the skeleton argument.
Delivery of skeleton arguments
10 Subject to any contrary direction by the court:
(a) the applicant shall lodge in the Office (see annex A) and copy to the respondent and any other party a skeleton argument and all related documents at least ten working days before the date fixed for the hearing;
(b) the respondent shall lodge in the Office and copy to the applicant and any other party a skeleton argument and all related documents at least five working days before the date fixed for hearing;
(c) any other party shall lodge in the Office and copy to all other parties a skeleton argument and all related documents at least five working days before the date fixed for hearing;
(d)
11 The use of e-mail reduces significantly the time required for processing cases. Skeleton arguments, annexes and copies of authorities and any other related documents should, where possible, be submitted to the relevant Office by e-mail (the e-mail addresses are given at Annex A).
12 Where the skeleton arguments, annexes and copies of related authorities and documents are submitted electronically to the Office and other parties the time scale for submission is reduced by one working day.
13 Where electronic communication is used in accordance with paragraph 12 there is no need to also lodge hard copies as provided by paragraph 10. Where it is not possible to send copies of authorities by e-mail the requisite number of copies shall be lodged in the Office on the same day that the e-mails are sent.
24 Where the applicant, respondent, or any other party fails to comply with this Practice Direction in any respect he or she will be required to account for the failure to the Court and, in the absence of a good and sufficient explanation, the party in default may be penalised in costs.
Judge Weatherup