JUDICIAL REVIEW

JUDICIAL REVIEW PRACTICE DIRECTION

3/2018

Page No

Preface 3

General 3

PART A PRE-PROCEEDINGS 4

PART B PRE-LEAVE 5 - 9

PART C POST-LEAVE 10 – 11

PART D BUNDLES OF DOCUMENTS 12 – 14

PART E STANDARD DIRECTIONS 15 - 16

PART F SKELETON ARGUMENTS 17

Note: Some of the requirements contained in the individual Parts of this Practice

Direction extend beyond the section in which they appear.

APPENDIX I Pre Action Protocol 18-26

APPENDIX II The Order 53 Pleading 27-35

APPENDIX III Service on Northern Ireland Departments 36-37

APPENDIX IV Service on Authorised Government Departments 38-41

APPENDIX V Affidavits and exhibits 42-47

APPENDIX VI Skeleton arguments 48-51

APPENDIX VII Human Rights Act 1998 52-53

APPENDIX VIII Devolution Issues 54

APPENDIX IX Public Funding 55

APPENDIX X Compassionate Temporary Release and related cases 56-58

Preface

[1] The central themes of this revised Practice Direction are partnership, co-

operation, efficiency and expedition. Judicial review is a distinctive species

of litigation. It lacks many of the trappings of private law litigation. This is

reflected, firstly, in the notion of partnership with the Court. Every party

and all representatives should be conscious of this partnership and its

implications at every stage. It is illustrated particularly in the supremely

important duties of candour and co-operation. The related themes of

efficiency and expedition require no elaboration. At heart they are designed

to ensure that the principles enshrined in the over-riding objective are at the

forefront of every case, from initiation to completion. The parties and the

Court share the common aim of processing every case in a manner which

makes the best possible use of the Court’s limited resources and brings

about an outcome within reasonable timescales, consistent with every

party’s inalienable right to a fair hearing.

General

[1] This Practice Direction, issued with the approval of the Lord Chief Justice

(NI), supersedes its predecessor (issued on 16 January 2006, revised on 30

September 2008 and 10 October 2013).

[2] This Practice Direction complements, but does not modify or amend, the

relevant provisions of the Rules of the Court of Judicature (“RCC”), in

particular – but not limited to – Order 53.

[3] Familiarity with RCC Orders 1, 24, 38, 41, 53, 54, 59, 62, 119 and 120 is

essential for all judicial review practitioners.

[4] It is not the function of the Judicial Review Office (the “Office”) to prepare

bundles or print papers for Judges. Exceptions to the latter will be made

only in compelling circumstances and upon judicial direction.

[5] Practitioners are urged to limit electronic communications with the Office to

the absolutely essential. Part G of this Practice Direction will be strictly

applied in every case.

[6] All email communications with the Office should be addressed only to

judicialreviewoffice@courtsni.gov.uk.

Part A Re Pre-action Protocol

(1) The Pre-Action Protocol (“PAP”) is at Appendix I. It is an integral part of

this Practice Direction.

(2) The PAP letters in Appendix 1 will be used in every case. They contain the

minimum contents and are not intended to preclude inclusion of other

significant content.

(3) The duty of strict compliance with the PAP applies in every case, except in

the most urgent or compelling circumstances and irrespective of whether the

proposed Respondent is legally empowered to revoke or alter the impugned

decision or action. Judicial direction should be promptly and proactively

sought in every such case.

(4) The PAP mechanism has among its aims the avoidance of litigation where

this can be achieved. Having regard to the time limit of three months

prescribed by RCC Order 53, Rule 4, it is essential to specify certain time

limits belonging to the PAP phase. To this end, as a general rule:

(a) The putative Applicant’s PAP letter will be transmitted not later than

7 weeks following the date of the impugned decision, act or measure.

(b) The agency or agencies to whom the Applicant’s PAP letter is

directed shall respond within the ensuing period of 3 weeks.

(5) Parties and practitioners are reminded that neither the Court nor the Office

has any function of any kind until proceedings are initiated and lodged.

(6) Any failure to comply properly with the PAP may have (inter alia) adverse

costs implications for the defaulting party or its representatives.

Part B: Initiating Proceedings, the Order 53 Pleading, Service

and the leave stage generally

Preface

The Applicant’s pleading is a vital element of every judicial review case. This is

reflected in the model Order 53 Statement at Appendix II. Concision, clarity,

precision and adequate particularity are the supreme requirements of every Order

53 pleading.

(1) An application for leave to apply for judicial review must be made by

lodging (under O53 R3(2)) -

(i) an ex parte docket;

(ii) an Order 53 Statement;

(iii) affidavit(s) (and exhibits).

(2) The model Order 53 Statement at Appendix II must be used in every case,

without exception.

(3) Every Order 53 Statement will be completed in an electronic format which

allows electronic transmission to the Office in urgent cases and permits any

later necessary revisions.

(4) Any request for urgent or expeditious consideration must be clearly

highlighted in both the Order 53 Statement and in separate communication

with the Office.

(5) Every application for leave to apply for judicial review must be served on

both the Office and the proposed Respondent or its notified or usual legal

representatives, complying strictly with the service provisions of

Appendices III and IV hereof.

(6) There will be cases in which the Applicant will be expected to also serve the

judicial review leave application on a person or agency with an obvious

interest in the subject matter of the proceedings.

(7) Every application for leave to apply for judicial review will be determined in

one of three ways:

(a) On the papers, where the Court is proposing to grant leave without

any form of hearing.

(b) At an ex-parte hearing: this is likely to be reserved to cases of

exceptional urgency or possessing some other special or compelling

feature.

by the proposed Respondent and any non-party so invited.

(8) The Court, prior to determining the leave application, may, at its discretion,

invite the proposed Respondent and/or any non-party on whom the

application has been served to set forth their response to the Applicant’s

case in writing, either generally or in such specific respects as may be

directed.

(9) Where the proposed respondent is a Northern Ireland department the

solicitor and address for service are the Departmental Solicitor’s Office,

Centre House, 79 Chichester Street, Belfast BT1 4JE. See Appendix III.

(10) Where the proposed respondent is an Authorised Government Department

the solicitor and address for service are the Crown Solicitor’s Office, Royal

Courts of Justice, Chichester Street, Belfast BT1 3JY. See Appendix IV.

(11) Where the proposed Respondent is a statutory body involved in the

provision of health or social care, the solicitor and address for service are the

Chief Legal Advisor, HSC Business Services Organisation, Directorate of

Legal Services, 2 Franklin Street, Belfast, BT2 8DQ.

Immigration and Asylum Cases – Challenging Removal Or Deportation.

(12) Every application for leave to apply for judicial review and/or interim relief

or expedition must be accompanied by –

(i) A copy of the removal directions and the decision to which the

application relates;

(ii) Any document served with the removal directions including any

document which contains the Immigration and Nationality

Directorate’s factual summary of the case;

(iii) If the applicant is unable to comply with (i) and (ii) above, a statement

of the reasons why.

(iv) Particulars of the time/date/method of service of the papers on the

proposed Respondent or its representative.

The Leave Bundle

(13) Every leave application bundle shall:

(a) Have as its first page an index describing fully and coherently each

element of the contents.

(b) Be paginated from beginning to end.

• Ex parte docket.

• Certificate of Urgency, where appropriate, accompanied by the

Applicant’s draft interim relief order.

• Order 53 Statement, accompanied by proposed litigation

timetable and, where appropriate, any Certificate of Legal Aid.

• Each supporting affidavit, every affidavit to be followed by its

particular exhibited documents.

• PAP correspondence (always the final components).

Affidavits and Exhibits

(14) Practice Direction 5/2005 (“PD5”) issued by the Lord Chief Justice on 25

July 2005 on “Preparation of Affidavits and Exhibits” applies to affidavits

and exhibits filed in judicial review proceedings. The relevant text is in

Appendix V.

(15) Every affidavit will have one exhibits sheet. The documents thus exhibited

will be identified and described in the composite index specified in [13] (a)

above.

(16) Every affidavit shall, in addition to complying with RCC Order 41 and PD5:

(i) Comply with the deponent’s duty of candour to the Court.

(ii) Consist exclusively of averments of fact.

(iii) Avoid sworn argument.

(iv) Avoid mere comment.

(v) Avoid repetition of previous sworn averments and quotations from

other affidavits

(vi) Omit reference to any statutory provisions or case law.

(vii) Proactively and fully address issues such as urgency, expedition,

anonymity, missing/unavailable material documents and delay.

(viii) Will not exhibit legislation or cases.

Urgent applications

(17) Every urgent application for leave or interim relief or interlocutory relief

during office hours may be arranged by email or telephone to the Judicial

Review Office at –

email address – judicialr[email protected]ov.uk

Tel Nos. 028 90724685 & 028 90725917

Note that during office hours the preferred means of contact is by email.

(18) Urgent applications out of office hours may be arranged by telephone to the

RCJ out of hours contact telephone number –

Tel No 028 90724618

or the Out of Hours Mobile phone number - which has been provided to legal

practitioners via the relevant channels.

Note that applications out of office hours are exceptional, to be confined

to compelling cases where it is not possible for the matter to be dealt with

during office hours.

(19) Urgent applications out of term must be accompanied by a Certificate of

Urgency, explaining WHY urgent processing is requested, signed by

Counsel and lodged before any hearing, and may be arranged –

(i) (during office hours) by email or telephone to the Judicial Review

Office at the contacts above.

Note that during office hours the preferred means of contact is by email

(ii) (outside office hours) by telephone to the RCJ out of hours contact

telephone number above.

(20) Compassionate temporary release and kindred applications. Every

challenge by a prisoner to a negative compassionate temporary release

decision and every kindred challenge shall be compliant with the

requirements specified in Re McKee’s Application for Judicial Review [2018]

NIQB 60 at [1] – [13]. These are reproduced in Appendix VII.

Hearing Dates

(21) The general rule is that the date for every hearing – leave, interim relief, case

management review, substantive adjudication et al – will be determined by

the Judge and notified to the parties/their representatives. The parties and

their representatives are, however, strongly encouraged to proactively

communicate with each other and the Office from the earliest stage possible

with a view to applying for an agreed hearing date or making

representations in respect thereof. All such notifications and

representations, provided that they are timeously made, will be taken into

account by the Court.

(22) Every prospective or actual judicial review Respondent and every interested

party must pay particular attention to the timetable attached to the Order 53

pleading, timeously and proactively engaging with all other parties/their

legal representatives.

(23) Every application to vacate or vary a hearing date of any kind will be made

timeously, in writing, containing the essential brief particulars and following

communication among all parties and their representatives.

PART C: POST-LEAVE

Notice of Motion

(24) Where leave has been granted an originating motion must be issued in 14

days or leave lapses [RCC Order 53, R5(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.

Draft Orders

(25) The relevant party will provide the Office with a draft order, containing all

necessary terms, and indicating the agreement or absence thereof of every

other party, in all such cases as are appropriate.

(26) A draft order will be especially appropriate in cases where the parties/their

representatives are agreed about the proposed course of action and, without

prejudice to the generality of the foregoing, in the following instances in

particular:

(i) Interim relief.

(ii) Protective costs.

(iii) Timetabling matters.

(iv) Final disposal.

(27) Every draft order relating to final disposal will include a recital or recitals

stating in concise and intelligible terms the basis of/reasons for the course of

action/outcome which the Court is invited to sanction. In many cases this

will entail a simple statement such as:

“AND THE RESPONDENT having [provided OR done OR completed

… OR agreed to provide/do/complete] ‘X’ by ‘Y’ date ….”

(28) Where the parties are unable to agree on costs they shall proactively

provide, with the draft order, their competing written representations, not to

exceed two A4 pages without the express prior permission of the Court.

PART D: BUNDLES OF DOCUMENTS

(29) Every leave application bundle compliant with the requirements specified in

Part B above shall become Trial Bundle 1, Part II.

(30) The Trial Bundle 1, Part I shall in every case consist of, in the following

sequence:

• The Order 53 Statement, in final form, showing in colour any

amendments.

• The Notice of Motion.

• All Orders/directions of the Court from the inception of proceedings.

• Where appropriate: chronology, agreed schedule of material facts, list

of dramatis personae, glossary.

• Skeleton arguments.

(31) Further regulation of Trial Bundle 1:

(a) It will have a new covering index, reflecting its enlarged contents.

(b) The pagination of Part I will be IA, IB etc.

In this way Trial Bundle 1, Part II will be an exact duplicate of the leave

bundle.

(32) Trial Bundle No 2 will be an indexed and paginated compilation consisting

of (a) any materials provided by the Respondent at the leave stage and (b)

the totality of the Respondent’s affidavits and exhibited documents and will

in every case begin with a comprehensive covering index.

(33) Trial Bundle No 3 will contain the affidavit evidence and exhibited

documents of any authorised participating interested party and will comply

fully with all of the aforementioned requirements.

(34) In any case where the Applicant, with the permission of the Court, rejoins to

the Respondent’s affidavit evidence and documents:

(i) Trial bundle 1, Parts I and II will be as directed above.

(ii) The Applicant’s rejoinder affidavit/s (where appropriate) and

exhibits will be compiled as Trial Bundle 1, Part III, continuing the

pagination of Part II and the covering index at the beginning of the

bundle will be revised accordingly.

(iii) Where for reasons of volume or otherwise the mechanism in (ii)

above is not feasible, the Applicant’s rejoinder materials will be

assembled in a new bundle, with a new covering index and new

pagination and the bundle will be described as Trial Bundle No 3

unless this is not practically feasible.

(iv) The pagination in Trial Bundle 1, Part 2 will be an extension of the last

page number in Part 1.

(v) The composite covering index at the beginning of the bundle will be

amended accordingly.

(35) In any case where, for reasons of bulk or otherwise, the

pleadings/affidavits/documentary exhibits cannot be accommodated in

bundles of conventional size, this will frequently be an indicator that a core

bundle is required, irrespective of any special or specific direction of the

Court. Where appropriate, this issue will be proactively addressed by the

parties’ representatives and the Applicant/its representatives will file such

bundle with the Office and serve same on all other parties/their

representatives at latest 7 working days prior to the scheduled hearing

date.

Planning/Environmental Judicial Reviews

(36) In every planning/environmental judicial review, the trial bundles will be

compliant with the requirements specified above, together with the

following:

(a) All planning policy documents in the evidence will be assembled in

chronological sequence in a free standing bundle.

(b) Photocopies of planning policies are frequently of unsatisfactory

quality; accordingly, “original” brochures/leaflets et al should

normally be used.

standing bundle OR, where feasible, in a separate Part 2 of the

Policies Bundle.

(d) Each of the aforementioned bundles shall begin with a

comprehensive covering index.

(e) The Applicant shall, following consultation with all other parties,

provide at least 7 days prior to the substantive hearing date:

(i) A chronology of material dates and events.

(ii) A schedule of agreed material facts (only where directed)

(iii) A glossary of terms/acronyms.

(iv) A list of dramatis personae.

PART E: STANDARD DIRECTIONS

(1) The Applicant’s representatives have the lead responsibility in all matters

pertaining to the compilation and filing of bundles of documents, as

elaborated below. This responsibility will be discharged via sensible and

reasonable liaison with the representatives of all other parties.

(2) The first two time limits specified below will be measured from the date of

the Order of the Court granting leave to apply for judicial review:

(i) Respondent’s affidavit evidence and exhibited documents: 28 days.

(ii) Any interested parties’ affidavit evidence and exhibited documents:

ditto.

(iii) Any rejoinder by the Applicant: 21 days later.

(iv) The Applicant’s skeleton argument: within 14 days of (iii) above.

(v) Skeleton arguments of the Respondent/interested party: within 14

days of (iv) above.

(vi) Agreed bundle/s of authorities: within 7 days of (v) above.

(3) All of the aforementioned standard directions will apply automatically

unless the Court specifically directs otherwise.

(4) Anything not expressly addressed in this Practice Direction or by specific

order of the Court will not preclude the parties/their representatives from

proactively taking further steps in furtherance of the overriding objective

enshrined in Order 1, Rule 1A. These may inexhaustively include the

preparation of:

(i) Schedules of agreed material facts.

(ii) Schedules of contentious material facts.

(iii) Chronologies.

(iv) Dramatis Personae.

(v) Glossary of terms/acronyms.

(5) The steps specified in [4] above should be considered in every case and will

be especially apposite in the following types of judicial review:

(i) Planning/environmental.

(ii) Legacy.

(iii) Prisons.

(iv) Education.

(v) Children’s/Health Trust cases.

(vi) Health and Social Care cases.

(6) In every case embraced by [4] – [5] above, the time limit for serving/filing

the relevant instrument will be 7 clear days in advance of the substantive

judicial review hearing.

PART F: SKELETON ARGUMENTS

(1) Practice Direction 6/2011 issued by the Lord Chief Justice on 21 December

2011 at Part A deals with Skeleton Arguments and Related Documents.

Relevant extracts are set out in Appendix VI.

(2) In addition to the matters appearing in the Practice Direction –

(a) Skeleton arguments are compulsory in substantive Judicial Review

proceedings.

(b) They are not required in applications for leave, unless directed by the

Court.

counsel and solicitors.

(d) Skeleton arguments will be served in every case electronically, unless

otherwise directed by the Court.

(3) Unless otherwise directed by the Court skeleton arguments will not exceed

six A4 pages of normal font size.

(4) Time limits: see E(2) above.

(5) Skeleton arguments will not be provided at any initial or interim stage

unless specifically directed by the Court. A request for a direction may be

made at any time.

(6) Reserved Judgments. The Court may give specific directions relating to

matters such as the circulation and correction of a draft judgment,

confidentiality and embargo on publication in any case.

APPENDIX I

PRE-ACTION PROTOCOL FOR JUDICIAL REVIEW

General

1. Strict compliance with this Pre-action Protocol (“PAP”) is required in all but

the most exceptional of cases. Attention is drawn to paragraph [14] of the

Model Order 53 Statement (Appendix II infra).

2. This PAP does not affect the time requirements specified in Order 53, Rule 4

of the Rules of the Court of Judicature.

3. The requirement of compliance with this PAP extends to cases in which the

proposed Respondent may contend that it has no legal power to reconsider

or remake the impugned act or decision.

Non – Litigation Options

4. Having regard to the principle that litigation is a measure of last resort and

bearing in mind the components of the overriding objective any non-

compliance with this PAP may be reflected in the exercise of the Court’s

discretion relating to costs.

5. It is not practicable in this protocol to address in detail how the parties

might decide which method to adopt to resolve their particular dispute.

However, summarised below are some of the options for resolving disputes

without litigation:

(i) Discussion and negotiation.

(ii) Ombudsmen – the Parliamentary and Health Service, Police and

Prison Services for Northern Ireland. Ombudsmen have discretion to

deal with complaints relating to maladministration. The British and

Irish Ombudsman Association provide information about

Ombudsman schemes and other complaint handling bodies and this is

available from their website at www.bioa.org.uk. Parties may wish to

note that the Ombudsmen are not able to look into a complaint once

court action has been commenced.

(iii) Early neutral evaluation by an independent third party, (for example, a

lawyer experienced in the field of administrative law or an individual

experienced in the subject matter of the claim).

(iv) Mediation – a form of facilitated negotiation assisted by an

independent neutral party.

6. This protocol does not impose a greater obligation on a public body to disclose

documents or give reasons for its decision than that already provided for in

statute and common law. Nonetheless, where the court considers that a public

body should have provided relevant documents and/or information,

particularly where this failure is a breach of a statutory or common law

requirement, it may impose sanctions. It is important however that the

applicant sets out clearly the specific documents, if any, sought and of which

he/she is aware.

7. Judicial review may not be appropriate in every instance. Applicants are

strongly advised to seek appropriate legal advice when considering such

proceedings and, in particular, before adopting this protocol or making a claim.

Although the Legal Services Agency will not normally grant full representation

before a letter before application has been sent and the proposed respondent

given a reasonable time to respond, initial funding may be available, for eligible

applicants, to cover the necessary work .

8. Where the Court considers that there has been an unreasonable or otherwise

inappropriate failure by any party to comply with the provisions of this PAP

this will normally be reflected in the exercise of the Court’s discretion regarding

costs.

The Applicant’s PAP Letter

9. Before making an application, the applicant should send a letter to the

proposed respondent. The purpose of this letter is to identify the issues in

dispute and establish whether litigation can be avoided.

10. Applicants should normally use the suggested standard form for the letter

outlined in Annex A.

11. The letter should contain the date and details of the decision, act or omission

being challenged and a clear summary of the facts on which the application is

based. It should also contain the details of any relevant information that the

applicant is seeking and an explanation of why this is considered relevant.

12. The letter should normally contain the details of any interested parties known

to the applicant. They should be sent a copy of the letter before the application

for information. Applicants are strongly advised to seek appropriate legal advice

when considering such proceedings and, in particular, before sending the

letter before the claim to other interested parties or making an application.

13. The application should not normally be made until the proposed reply date

given in the letter before the application has passed, unless the circumstances of

the case require more immediate action to be taken.

The proposed Respondent’s PAP response

14. Proposed respondents should normally respond within 21 days at most using

the standard format at Annex B. Failure to do so will be taken into account by

the court and sanctions may be imposed unless there are good reasons.

15. Where it is not possible to reply within the proposed time limit the respondent

should send an interim reply and propose a reasonable extension. Where an

extension is sought, reasons should be given and, where required, additional

information requested. This will not affect the time limit for making an

application for judicial review nor will it bind the applicant where he or she

considers this to be unreasonable. However, where the court considers that a

subsequent application is made prematurely it may impose sanctions.

16. If the application is being conceded in full the reply should say so in clear and

unambiguous terms.

17. If the application is being conceded in part or not being conceded at all, the

reply should say so in clear and unambiguous terms, and:

(a) where appropriate, contain a new decision, clearly identifying what

aspects of the claim are being conceded and what are not, or give a

clear timescale within which the new decision will be issued;

(b) provide a fuller explanation for the decision, if considered appropriate

to do so;

addressed;

(d) enclose any relevant documentation requested by the applicant or

provide access to relevant documentation requested by the applicant.

It should explain why the documents are not being enclosed or

explain why access is not being made available; and

(e) where appropriate, confirm whether or not they will oppose any

application for an interim remedy.

18. The response should be sent to all interested parties identified by the applicant

and contain details of any other parties who the respondent considers also have

an interest. It may also be worthwhile for a proposed respondent to make

contact with an interested party to ensure it is aware of any delay/prejudice

points relevant to the issues.

Annex A

The Applicant’s PAP Letter

Section 1. Information required in a letter before application

1. Proposed claim for judicial review

(Insert the name and address of the proposed respondent - see details in

section 2).

2. The Applicant

(Insert the title, first and last name and the address of the applicant).

3. Reference details

(When dealing with large organisations it is important to understand that the

information relating to any particular individual’s previous dealings with it may

not be immediately available. Therefore it is important to set out the relevant

reference numbers for the matter in dispute and/or the identity of those within the

public body who have been handling the particular matter in dispute - see details in

section 3).

4. The details of the matter being challenged

(Set out clearly the matter being challenged, particularly if there has been more than

one decision).

5. The issue

(Set out the date and details of the decision, or act or omission being challenged, a

brief summary of the facts and why it is contended to be wrong including any

breach of Human Rights relied on).

6. The details of the action that the respondent is expected to take

(Set out the details of the remedy sought, including whether a review or any interim

remedy is being requested).

7. The details of the legal advisers, if any, dealing with this claim

(Set out the name, address and reference details of any legal advisers dealing with

the application).

8. The details of any interested parties

(Set out the details of any interested parties and confirm that they have been sent a

copy of this letter).

9. The details of information sought

(Set out the details of any information that is sought. This may include a request for

a fuller explanation of the reasons for the decision that is being challenged).

10. The details of any documents that are considered relevant and necessary

(Set out the details of any documentation or policy in respect of which the disclosure

is sought and explain why these are relevant. If you rely on a statutory duty to

disclose, this should be specified).

11. The address for reply and service of court documents

(Insert the address for the reply.)

12. Proposed reply date

(The precise time will depend upon the circumstances of the individual case.

However, although a shorter or longer time may be appropriate in a particular case,

14 days is a reasonable time to allow in most circumstances).

Section 2. Addressees

(a) Public bodies have requested that, for certain types of cases, in order to ensure

a prompt response, letters before application should be sent to specific

addresses.

(b) Where the subject matter of the PAP letter concerns a decision in an

immigration, asylum or nationality case:

Litigation Team

UK Visas and Immigration

Festival Court 1

200 Brand Street

Glasgow

G51 1DH

Email: SNIJRTeam@homeoffice.gsi.gov.uk

Fax: 03703369648

authority:

The address on the decision letter/notification; and their legal department

(d) Where the subject matter of the PAP letter concerns a decision by a

department or body for whom the Crown Solicitor acts and the Crown

Solicitor has already been involved in the case the letter before application

should be addressed to the person who sent the letter notifying the decision

and a copy should also be sent, quoting the Crown Solicitor’s reference, to:

The Crown Solicitor’s Office

Royal Courts of Justice

Chichester Street

Belfast

BT1 3JY

(e) Where the application concerns a decision by a department or body for whom

the Departmental Solicitor customarily acts the letter before application

should be addressed to the author/office/department of the impugned

decision and, quoting the Departmental Solicitor’s reference if known, to:

Departmental Solicitor

floor Centre House,

79 Chichester Street

Belfast BT1 4JE

Telephone number: 90542514.

(f) Where the subject matter of the PAP letter concerns a decision, measure or

an act of a health and social care body:

Chief Legal Adviser

HSC Business Services Organisation

Directorate of Legal Services

2 Franklin Street

Belfast BT2 8DQ

(g) In all other circumstances, the letter should be sent to the address on the

letter notifying the decision.

Section 3. Specific reference details required

Public bodies have requested that the following information should be

provided in order to ensure prompt response.

Where the claim concerns an immigration, asylum or nationality case,

dependent upon the nature of the case:

• The Home Office reference number;

• The Port reference;

• The Asylum and Immigration Tribunal reference number;

• The National Asylum Support Service reference number; or if these

are unavailable;

• The full name, nationality and date of birth of the claimant.

Where the claim concerns a decision by the Legal Services Commission:

The certificate number.

Annex B

The Proposed Respondent’s PAP Response

Information required in a response to a letter before application

The Applicant

(Insert the title, first and last names and the address to which any reply should be sent.)

From

(Insert the name and address of the respondent)

Reference details

(Set out the relevant reference numbers for the matter in dispute and the identity of

those within the public body who have been handling the issue)

The details of the matter being challenged

(Set out details of the matter being challenged, providing a fuller explanation of the

decision, where this is considered appropriate)

Response to the proposed application

(Set out whether the issue in question is conceded in part, or in full, or will be

contested. Where it is not proposed to disclose any information that has been requested,

explain the reason for this. Where an interim reply is being sent and there is a realistic

prospect of settlement, details should be included)

Details of any other interested parties

(Identify any other parties who you consider have an interest who have not already been

sent a letter by the applicant)

Address for further correspondence and service of court documents

(Set out the address for any future correspondence on this matter)

APPENDIX II

MODEL ORDER 53 STATEMENT

No 2018/…../01

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)

________

In the Matter of an Application by …….

For leave to apply for Judicial Review

_______________________________

ORDER 53 STATEMENT

[1] The Applicant

1.1 The Applicant is ….., who is …………………….

[2] The Proposed Respondent

2.1 The proposed Respondent is …………………..

[3] The impugned decision/omission

3.1 The Applicant is challenging the proposed Respondent’s decision dated

………….. whereby it was determined that ………………….. [OR] ……….

the proposed Respondent’s failure to ………………… [within a reasonable

time?] …………………………...

[4] The relief sought

4.1 The Applicant seeks the following primary relief:

(i) ……………………….

(ii) ………………………..

(iii) Costs.

[5] Grounds of Challenge

The Applicant’s grounds of challenge are:

(i) Illegality. The Applicant contends that the impugned decision was

unlawful in the following respects:

(a)

(b)

(c)

(ii) Immaterial considerations. The Applicant further contends that the

impugned decision is vitiated by the proposed Respondent having

taken into account the following immaterial facts/considerations:

(a)

(b)

(c)

(iii) Material considerations. The Applicant further contends that the

impugned decision is vitiated by the proposed Respondent having

failed to take into account the following material

facts/considerations:

(a)

(b)

(c)

(iv) Procedural unfairness. The Applicant contends that the impugned

decision was procedurally unfair in the following respects:

(a)

(b)

(c)

(v) Irrationality. The Applicant contends that the impugned decision

was irrational in the Wednesbury sense in the following respects:

(a)

(b)

(c)

(vi) Improper motive/bad faith. The Applicant contends that the

impugned decision is vitiated by improper motive/bad faith in the

following respects:

(a)

(b)

(c)

(vii) Breach of statutory duty/requirement. The Applicant contends that

the impugned decision is vitiated by the proposed Respondent’s

failure to comply with the following statutory duty/requirements:

(a)

(b)

(c)

(viii) Substantive legitimate expectation. The Applicant contends that he

had a substantive legitimate expectation that …………….. This

expectation was engendered by ……………………. This expectation

was frustrated in the following respects:

(a)

(b)

(c)

(ix) Breach of EU law. The Applicant contends that pursuant to

[MEASURE OF EU LAW] …………………. of …………………….. he

had the following legal rights:

(a)

(b)

(c)

The Applicant further contends that his aforementioned right/s

was/were breached in the following respects:

(d)

(e)

(f)

(x) Breach of Prison Rules. The Applicant contends that the impugned

decision is unlawful as it infringed the following provision/s of the

Prisons and Young Offenders Centres Rules :

(a)

(b)

(c)

In the following specific respects:

(d)

(e)

(f)

(xi) Breach of policy. The Applicant contends that he is entitled to rely

upon the proposed Respondent’s policy ……………………

[description, date ……. particulars etc] …………………. The

impugned decision is in breach of said policy in the following

respects:

(a)

(b)

(c)

(xii) Planning policies. The Applicant contends that the impugned

decision is in breach of [description of relevant policy: name/title, date,

particulars …… etc] in the following respects:

(a)

(b)

(c)

[6] Interim relief

The Applicant seeks the following form/s of interim relief:

(a)

(b)

(c)

[7] The grounds upon which the Applicant seeks interim relief are:

(a)

(b)

(c)

[8] Expedition

The Applicant requests expedition on the following grounds:

(a)

(b)

(c)

[9] Human rights: declaration of incompatibility

9.1 It is hereby certified, with reference to Order 121(2) of the Rules of the

Court of Judicature, that one of the issues raised in these proceedings

is whether the Court should make a declaration that …………………

[relevant provision/s of primary legislation] is incompatible with

………….. [relevant protected Convention right] under section 4 of the

Human Rights Act 1998.

[Alternatively]

9.2 It is hereby certified, with reference to Order 121(3A) of the Rules of

the Court of Judicature, that one of the issues raised in these

proceedings is whether the Court should find that ………………

[relevant provision of subordinate legislation] …………………. is

incompatible with [……….. relevant protected Convention right

………].

[10] Devolution issues

10.1 It is hereby certified, with reference to Order 120, Rule 2 of the Rules

of the Court of Judicature, that these proceedings give rise to a

“devolution issue” within the meaning of Schedule 10 to the

Northern Ireland Act 1998.

10.2 It is further certified that the Applicant has complied with Part D of

the Judicial Review Practice Note 1/2008 by filing the attached

Notice and serving same on all parties to these proceedings and,

further, that the said Notice specifies the facts, circumstances and

points of law said to give rise to a devolution issue in sufficient detail

to enable the Court to determine whether this is so.

[11] Service

11.1 It is hereby certified that this Statement and all accompanying

documents were:

(a) Served on …………………… [name] ………………. by

[method] at [address, to specify individual office where

appropriate***]…………… on [date].

(b) Served on …………………..[Ditto.]

11.2 If the matter is urgent, service by email must be preceded by a telephone call

to check that the email will be received.

11.3 ***If service is by hand delivery at a multi occupancy/public building,

leaving a document at the front reception desk does not put the solicitor on notice.

Thus service has to be effected at/in the office of the solicitor.

[12] Legal Aid

The Applicant is/is not an assisted person.

[If legally aided] The certificate of legal aid is attached.

[13] Protective Costs Order

There is no application for such an order.

[OR]

The Applicant’s application for a protective costs order, with accompanying

draft order, is attached.

[14] PAP REQUIREMENTS

I, the solicitor whose signature appears at the end of this document, certify

that the PAP requirements of the JR Practice Direction [have/have not] been

fully observed

[IF ‘have not’, insert here relevant explanation, information etc]

[15] JR PRACTICE Direction

I, the solicitor whose signature appears at the end of this document, certify

that there has been full compliance with the JR Practice Direction.

[16] PROPOSED LITIGATION TIMETABLE

The Applicant’s proposed litigation timetable is as follows:

(a)

(b)

(c)

(d)

(e)

(f)

[17] LEGAL REPRESENTATION

Name of Applicant’s solicitor:

[The individual responsible solicitor and firm]

Name of Applicant’s counsel:

Name of legal representative/s of proposed Respondent/s:

SIGNATURE OF RESPONSIBLE SOLICITOR

Signed: ________________________________

[MUST BE THE SOLICITOR PERSONALLY RESPONSIBLE]

of …………………………………………………… ….. [FIRM]

Solicitors for the Applicant

Solicitor’s email address: ________________________________

Dated this …….. day of ……………………………………… [MONTH & YEAR]

APPENDIX III

Service on Northern Ireland Departments

THE EXECUTIVE

OFFICE

CROWN

PROCEEDINGS

ACT

1947

10 & 11 Geo.6

List

Authorised Northern Ireland departments

and

the name

and

address for

service

of the

person who is acting

for

the purposes

the Act as

Solicitor

Northern Iceland

for

such

departments, published

by the

Executive Office

(a) in

pursuance

of Section

the

Crown

Proceedings Act

1947

as extended

Northern Ireland

relation

to Her

Majesty's

Government

Northern

Ireland by

the Crown Proceedings (Northern

Ireland)

Order 1981 read with

the Departments (Northern Ireland) Order

1999,

the

Department

of Justice Act

(Northern Ireland) 2010

and the

Departments Act (Northern

Ireland)

2016

Authorised Northern Ireland

departments

The

Executive

Office

)

The

Department

Agriculture, E

nvironment

)

and

Rural

Affairs

)

The

Department

for Communities

)

The

Department

for

the

Economy

)

The

Department

of Education

)

The

Department

of Finance

)

The

Department

of Health

)

The

Department

for Infrastructure

)

The

Department

of Justice

)

Commissioner

Valuation

for Northern

)

Ireland

)

Registrar General

Births, Deaths

and

)

Marriages

for

Northern

Ireland

)

Solicitor

and

Address for

Service

The Solicitor

Department

Finance

Departmental

Solicitor's Office

Centre

House

79 Chicheste

Street

BELFAST

BT13JE

(a)

See

Departments

(Transfer

and

Assignment

Functions) Order (Northern

Ireland)

1999

(

S.R

1999

No.

481)

NOTES

Sections 17

and

the Crown Proceedings

Act

1947

as extended to Northern

Ireland,

relation

to Her

Majesty's Government

Northern

Ireland

contain

provision

to the

following

effect:-

(Section

(3))

Civil proceedings against the Crown in right of Her

Majesty's g

overnment

in Northern Ireland shall be instituted against the appropriate authorised

Northern

Ireland Department or, if none of the authorised Northern Ireland

Departments

appropriate or the person instituting the proceedings has

any reasonable doubt

whether

any and if so which of those Departments is

appropriate, against the Attorney

General

for Northern

Ireland.

(Section 17

(3A))

Civil proceedings against the Crown may be instituted in Northern Ireland

against

the

Attorney General for Northern Ireland if the alleged liability arises

out of

the

performance of any function pursuant to any agency arrangement

or the person instituting the proceedings has any reasonable doubt whether

the alleged liability

the

Crown arises in respect of Her

Majesty's

overnment in the United Kingdom

in respect of Her

Majesty's

Government in Northern

Ireland.

(Section 18)

All

documents

required to be served on the Crown in right of Her

Majesty's

Government in Northern Ireland for the purpose of or in connection with any

civil

proceedings by or against the Crown in right of Her

Majesty's

Government

Northern Ireland shall, if those proceedings are by or against

an authorised Northern Ireland

Department

or the person, if any, acting for the

purposes of this Act

Solicitor for that

Department

or if there is no such

Solicitor and no person so

acting,

or if the proceedings are brought by or

against the Attorney General for Northern Ireland on the Solicitor, Department

Finance.

B. This list supersedes the list published on 7 May

2013.

A senior officer of the Executive

Office

20 May 2016

APPENDIX IV

Service on Authorised Government Departments

Office of the First Minister and Deputy First Minister

CROWN PROCEEDINGS ACT 1947

10 & 11 Geo. 6 ch. 44

List of Authorised Departments of the Government of the United Kingdom and the name

and address for service of the person who is acting for the purposes of the Act as

Solicitor in Northern Ireland for such Departments, published by the Office of the First

Minister and Deputy First Minister(a) in pursuance of Section 17 of the Crown

Proceedings Act 1947 as extended to Northern Ireland in relation to Her Majesty’s

Government in the United Kingdom by the Crown Proceedings (Northern Ireland) Order

1981 read with the Departments (Northern Ireland) Order 1999.

Authorised Solicitor and Address for Service

Government The Crown Solicitor for Northern Ireland

Departments Royal Courts of Justice

Chichester Street

Belfast BT1 3JY

ADVISORY CONCILIATION AND ARBITRATION SERVICE

ASSETS RECOVERY AGENCY

BOARD OF TRADE

CABINET OFFICE

HER MAJESTY’S REVENUE AND CUSTOMS

CROWN ESTATE COMMISSIONERS

MINISTRY OF DEFENCE

HOME OFFICE

PUBLIC PROSECUTION SERVICE FOR NORTHERN IRELAND

LORD CHANCELLOR’S DEPARTMENT

DEPARTMENT FOR CONSTITUTIONAL AFFAIRS

NORTHERN IRELAND COURT SERVICE

DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS

DEPARTMENT OF WORK AND PENSIONS

OFFICE OF THE DEPUTY PRIME MINISTER

EXPORT CREDITS GUARANTEE DEPARTMENT

OFFICE OF FAIR TRADING

NORTHERN IRELAND OFFICE

DEPARTMENT FOR TRANSPORT

HER MAJESTY’S TREASURY

NATIONAL SAVINGS AND INVESTMENTS

DEPARTMENT OF TRADE AND INDUSTRY

(a) See Departments (Transfer and Assignment of Functions) Order (Northern

Ireland) 1999 (S.R. 1999 No. 481)

NOTES

Sections 17 and 18 of the Crown Proceedings Act 1947 as extended to

Northern Ireland, in relation to Her Majesty’s Government in the United

Kingdom, contain provision to the following effect:

(Section

17(3)

Civil proceedings against the Crown shall be instituted against the appropriate

authorised Government department, or, if none of the authorised Government

departments is appropriate or the person instituting the proceedings has any reasonable

doubt whether any and if so which of those departments is appropriate, against the

Attorney General (for Northern Ireland).

(Section 17(3A)

Civil proceedings against the Crown may be instituted in Northern Ireland against the

Attorney General (for Northern Ireland) if the alleged liability arises out of the

performance of any function pursuant to an agency arrangement or the person

instituting the proceedings has any reasonable doubt whether the alleged liability of the

Crown arises in respect of Her Majesty’s Government in the United Kingdom or in

respect of Her Majesty’s Government in Northern Ireland.

(Section 18)

All documents required to be served on the Crown for the purpose of or in connection

with any civil proceedings by or against the Crown shall, if these proceedings are by or

against an authorised Government department, be served on the Solicitor, if any, for that

department, or the person, if any, acting for the purposes of this Act as Solicitor for that

department, or if there is no such Solicitor and no person so acting, or if the proceedings

are brought by or against the Attorney General (for Northern Ireland) on the Crown

Solicitor for Northern Ireland.

A list of Northern Ireland authorised departments and the addresses for service

in Northern Ireland was published on 29th September 2000.

This list supersedes the list published on 1st October 2004.

Neill

Jackson

A Senior Officer of the Office of the First Minister and Deputy First Minister

22 February 2006

APPENDIX V

Practice Direction 5/2005 issued by the Lord Chief Justice on

25 July 2005: “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 than 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:

“I 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 VI

Practice Direction 6/2011 issued by the Lord Chief Justice on 21 December 2011

PART A - SKELETON ARGUMENTS AND RELATED DOCUMENTS

3. Subject to paragraphs 4 to 5 skeleton arguments must be provided by the

applicant, respondent, or other party as follows:

(a) in civil and criminal appeals before the Court of Appeal, including

sentencing appeals, cases stated and references by the Director of

Public Prosecutions under section 36 of the Criminal Justice Act

1988;

(b) in any judicial review proceedings;

(d) in any other class of proceedings in the Queen’s Bench, Chancery or

Family Division where a judge directs, including those involving

litigants in person;

(e) in any class of proceedings (not covered by (c) or (d)) before masters

where the master directs;

(f) in any proceeding where the applicant or respondent anticipate that

points of law of any complexity will be argued; and

(g) in any other proceedings where the court directs.

4. In the case of a criminal appeal to the Court of Appeal for which leave is

required the applicant shall lodge a skeleton argument with the notice of

appeal, to enable the Single Judge to properly consider the case. Where the

skeleton argument does not contain sufficient information to enable the

Single Judge to do so, he may refuse leave.

4A. When making an application for leave to appeal under the Extradition Act

2003, the applicant shall lodge a skeleton argument with the ex parte

motion to enable the Single Judge to properly consider the case. Where the

skeleton argument does not contain sufficient information to enable the

Single Judge to do so, he may refuse leave.

5. In any proceeding the court may dispense with the requirement for

skeleton arguments.

6. A litigant in person will be expected to provide a skeleton argument unless

the court dispenses with the requirement.

7. The Court may require the provision of a supplemental skeleton argument

by the applicant, respondent, or other party.

Form and content of skeleton arguments

8. Skeleton arguments must be typed and shall state:

(a) The full title and record number of the proceedings

(b) The name of the party providing the skeleton argument;

party. (Or the phrase “acting in person” 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 shall be clearly stated. Authorities and, if

appropriate, the part of the judgment that supports the proposition

shall be cited with reference to the particular page number and

(where available) paragraph reference for the passage in the case,

textbook or journal.

Schedules

9. Each skeleton argument shall have the following schedules:

(a) A list of authorities. Full citations shall be given (including of

unreported cases) in accordance with the practice set out in Annex

E1. For cases, textbooks and articles, page numbers and, where

available, paragraph references for the passage relied on are

required. The sections of a statute or other legislative instrument

relied on shall also be specified. An example is attached at Annex A.

(b) The core authorities upon which a party is relying, especially those

that it is definitely intended to cite to the court, whether cases,

statutes, textbooks or other material. These shall appear first in the

list of authorities, and shall be differentiated from the other

authorities by means of an asterisk beside the list number. The

number of core authorities in a case shall only rarely exceed ten.

history, provided by the applicant. An example is attached at Annex

B. It will be assumed that this is agreed between the applicant and

respondent unless the skeleton arguments state otherwise.

(d) In criminal appeals a list of the interviews being relied upon, set out

in chronological order. These references shall include the page

number in Book of Appeal, paragraph number etc.

(e) In complex cases a list of the key persons in the case and their part in

the case. An example is attached at Annex C.

Delivery of skeleton arguments, bundles of authorities and related documents

10. Subject to any contrary direction by the court, in cases before the Court of

Appeal and the Divisional Court:

(a) the applicant shall lodge in the Office (see Annex F) and copy to the

respondent and any other party a skeleton argument, at least

thirteen 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 at least eight working days

before the date fixed for hearing;

a skeleton argument at least eight working days before the date fixed

for hearing;

Each party shall lodge their book of authorities and all related documents

at least seven working days before the date fixed for hearing.

11. Where lodgement is by hard copy, four copies of all documentation

referred to in this Part must be lodged with the Office in Court of Appeal

cases and three copies in Divisional Court cases.

12. In all other cases, subject to any contrary direction by the Court:

(a) the applicant shall lodge in the Office (see Annex F) and copy to the

respondent and any other party a skeleton argument 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 at least five working days

before the date fixed for hearing;

a skeleton argument at least five working days before the date fixed

for hearing;

Each party shall lodge their book of authorities and all related documents

at least four working days before the date fixed for hearing.

13. No submission of supplemental skeleton arguments, authorities or other

documents is permitted after these deadlines without the leave of the

Court.

14. Books of Authorities shall be compiled in accordance with Annex E1.

Where a party has less than fifteen authorities, they shall be submitted in

hard copy. Where a party has fifteen or more authorities, they shall be

submitted electronically and in hard copy, subject to any contrary direction

by the Court. Skeleton arguments and schedules thereto shall, where

possible, be submitted to the relevant Office in electronic format. Electronic

submission shall be in accordance with Annex E and the relevant e-mail

addresses are given at Annex F.

15. Electronic documents may be submitted by e-mail either as a series of

Word files or as an unlocked PDF file. Electronically scanned documents

should not be submitted. A read-receipt will be required as proof of

lodgement. Where the skeleton argument or schedules contain sensitive

information, that is information in relation to which reporting restrictions

may be imposed by law or requested by a party, it should not be sent by

unencrypted e-mail, but instead be lodged by submitting one CD copy or a

copy on another commonly used lockable digital recording medium such

as a memory-stick to the relevant Office as a PDF file. Further details are in

Annex E.

16. Where it is not possible to send copies of particular authorities by e-mail,

the requisite number of paper copies shall be lodged in the relevant Office

no later than the date of submission of the electronic documents.

17. Any party or their solicitor, where they have one, may request that the

Judges’ Reference Library provide to them by e-mail a composite electronic

PDF document of the skeleton arguments and authorities relied on by all

parties, for their use in preparation and in court.

APPENDIX VII

PART C - 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

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;

(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, [unlawful for a public authority to act

in a way that is incompatible with a Convention right] 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, [proceedings in respect of a judicial 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(2) 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. The Court will join as a party, if the requisite notice

is given, a Minister, a member of the Scottish Executive, a Northern Ireland

Minister or a Northern Ireland Department.

(5) An Order 121(3A) Notice will be issued by the Court to the Crown and the

parties where the Court is considering the compatibility of subordinate

legislation with a Convention right. The Court may join the Crown as a

party.

(6) For the Court to identify any incompatibility 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.

APPENDIX VIII

DEVOLUTION ISSUES

(1) A party raising a “devolution issue” shall specify in a Notice filed in the

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 as –

(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; [Minister or department has no power to

act or legislate where incompatible with Convention rights, Community

law, involves discrimination on religious belief or political opinion or seeks

to modify entrenched enactments]

failed to comply with any of the Convention rights, any obligation

under Community law or any order under section 27 [Minister may

make an order for quotas for international or Community obligations] 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.

(3) 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, any of whom may enter an appearance as a

party in the proceedings [0120R3] and any such party shall file a document

summarising their legal arguments in respect of the issue [O120R4].

APPENDIX IX

PUBLIC FUNDING

Notes on public funding for legal costs in judicial review.

Public funding for legal costs in judicial review is available through solicitors

working in private practice and the Not-For-Profit sector.

Funding may be provided for:

• Legal Advice and Assistance to provide initial advice and assistance under the

‘Green Form scheme’, which includes possible extensions on application to the

Northern Ireland Legal Services Commission (“NILSC”). Authority for the proposed

work to be done by way of an extension must be obtained from the NILSC prior to

the work being undertaken.

• Legal Aid to provide representation in the judicial review proceedings. This is

available in two forms, either a limited civil aid certificate or a full civil aid certificate

depending on the circumstances. The applicant’s solicitor must ensure that a copy of

all correspondence with the proposed respondent is enclosed with the application for

funding. This should include — as a minimum — a letter before application in the

terms of this protocol, and as referred to in the cases of Cunningham [2004] NIQB 58

and X [2007] NIQB 113.

The proposed respondent should have been afforded a reasonable opportunity for a

response, without which the NILSC may view any application for funding received

as premature. Counsel’s opinion should also be furnished where available.

Authority may be granted for a limited certificate, for example to obtain counsel’s

opinion or in relation to an application for leave hearing.

Subject to all relevant information being provided to the NILSC, and to the outcome

of any leave hearing, consideration can be given to granting a full certificate.

Prior to any engagement of senior counsel, application for authority must be made to

the NILSC, to include junior counsel’s comments on the necessity of this instruction.

Where in the view of the NILSC the circumstances of the case warrant same, a full

certificate may be granted from the outset.

APPENDIX X

COMPASSIONATE TEMPORARY RELEASE AND SIMILAR CASES

See Part B, paragraph [21] and the reference to Re McKee’s Application for Judicial

Review [2018] NIQB …….., paragraphs [1] – [13], reproduced below:

“[1] Applications by sentenced prisoners for the facility commonly known as

Compassionate Temporary Release (“CTR”) are commonplace. Typical scenarios

are a proposed hospital visit to be with a seriously ill or dying family member or

attendance at the funeral or wake of such a person or to attend a child’s First Holy

Communion ceremony. Equally commonplace are judicial review challenges to

negative decisions.

[2] The Court’s experience in the present case and in other recent cases is

such that some general guidance is considered both timely and essential.

[3] In the first place, the act of submitting to the prison authorities an

application for CTR should be notified promptly to the Judicial Review Office

(“JRO”). This will be easily accomplished in cases where the prisoner has

instructed a solicitor. However, it not infrequently occurs that applications of

this kind are submitted by the prisoner concerned without the involvement of any

legal representative. In all such cases, the recipient of the application should take

immediate steps to alert the JRO, either directly or through the usual legal

representative, attaching the CTR application.

[4] Strenuous efforts must be made in every case to ensure that the Court

receives all relevant documentary materials. These include in particular the

application submitted, any accompanying attachments, the impugned decision

and the most significant documents identified expressly or by implication therein.

The prison authorities should be particularly alert to certain realities. These

include the strong possibility that the prisoner will not have retained either a copy

of the application submitted or any accompanying documents. This kind of

omission can be easily rectified via the mechanism proposed above and the

response decision letter. These matters are of critical importance as they enable

the Court to conduct the exercise, an important one in virtually every case, of

juxtaposing claims and assertions made in the Applicant’s affidavit evidence with

the contents of relevant underlying documents. This is especially desirable in

cases where the challenging prisoner makes the familiar averment that the

decision maker failed to take specified matters into account.

[5] Alertness on the part of all concerned, in particular the prisoner and/or

any legal representative, to “real world” considerations is essential. These

include, in every case, the need for the decision maker and any official advising or

informing him to conduct appropriate enquiries with a view to examining and

verifying the contents of the prisoner’s application and in due discharge of the

public law duty of being properly informed. Time is also required to ensure that

the ensuing decision is of an appropriate quality and standard: this, properly

analysed, is a solemn public law duty. These time constraints are unavoidable in

a context where the proposed event will, in most cases, be scheduled to occur

within a very few days.

[6] These latter considerations underscore the lead for the early alert

highlighted in [3] above and the corresponding requirement that any judicial

review challenge be instituted with the maximum expedition. Proactive,

informative and continuous liaison with JRO personnel by both parties is

indispensable at all stages.

[7] In high speed litigation situations of this kind, the Court will be alert to

the practical limitations which may influence and constrain the litigation product.

Certain kinds of omission or error may qualify to be forgiven. However,

practitioners must be particularly alert to the requirements governing the form

and content of affidavits prescribed by Order 41 of the Rules of the Court of

Judicature. Above all there must always be strict compliance with Rule 5, which

provides:

“An affidavit may contain statements of information or belief with the sources

and grounds thereof.”

[8] This is especially important with regard to affidavits sworn by a solicitor

purporting to rehearse the client’s instructions or other factual matters. Non-

compliance with this fundamental requirement of the Rules is most unlikely to be

excused. Furthermore, in the vast majority of cases its practical effect will be to

weaken the prisoner’s legal challenge.

[9] While the practice of the Judicial Review Court makes provision for the

reception of draft affidavits, this facility should be viewed as wholly exceptional.

Two particular observations are apposite. First, it is difficult to conceive of any

circumstances in which this facility will be extended to a solicitor’s affidavit.

Second, it being understandable that in certain cases the prisoner’s affidavit

cannot be sworn due to time and related practical constraints, the solicitor’s

affidavit must [a] contain a full explanation for this and [b] contain suitable

averments sufficient to reassure the court that all appropriate steps and

precautions have been taken to vouchsafe the accuracy and reliability of the

contents. The reason for this caution and restraint lies in the great importance

which this court has consistently attached to the solemnity and gravity of

affidavits having the status and effect of properly sworn evidence. To view the

regulatory requirements governing affidavits as some kind of (mere) formality is

to indulge in misconception of a fundamental kind.

[10] Fluctuation and evolution are not uncommon in this sphere of litigation.

One of the most important lessons for legal representatives is alertness to the

need, in appropriate cases, to proactively and speedily invite the prison authorities

to take into account any new or revised information and to review the initial

decision in the light thereof.

[11] Judicial time and resource are at a premium in every case of this kind.

Judges frequently have to deal with these cases out of hours. They dutifully and

willingly do so. Practitioners must be on standby from the earliest possible hour

to receive very short notice of a scheduled Court listing. They must also bear in

mind that every case of this kind interrupts the judicial schedule which, as

everyone should know, extends well beyond visible sitting commitments. Hence

the convenience of the court will invariably be paramount.

[12] There are certain other considerations of a prosaic nature. While the

Judicial Review Practice Note makes clear that it is not the function of JRO

personnel to print electronic documents for the Judge some flexibility, in the

interests of expedition and procedural fairness, is usually possible in urgent cases

of this kind. This dispensation must never be abused. Additionally, the Court will

almost invariably give an oral judgment. This entails an inalienable duty on the

part of practitioners to conscientiously make a detailed note of all that the Judge

says. Furthermore, without judicial prompting or direction, the exercise of

forwarding both parties’ practitioners’ agreed text of the oral judgment to the

JRO, normally within at most three hours of conclusion of the hearing, should be

undertaken as a matter of course.

[13] In any case where the time constraints are such that the only viable option

open to the Court is judicial adjudication on the papers, it will be appropriate, as

it was in the present case, to invite the parties’ representations on this possibility.

Order 53, Rule 3(3) expressly empowers the Court to consider and determine an

application for leave in chambers. A hearing, whether ex parte or inter-partes, is

not made obligatory. It is of course the practice of the High Court in this

jurisdiction to refuse leave to apply for judicial review only where the Applicant

has been afforded the opportunity of an oral hearing conducted in such manner as

the Court may consider fair and appropriate. However, this is not necessarily an

inalienable element of every litigant’s right to fair judicial adjudication, it being

trite that context is the critical determining factor in this respect. The reach of the

overriding objective – in Order 1 Rule 1A – and the breadth of the Court’s case

management powers, reposing in its inherent jurisdiction (as to which see Ewing

v Times Newspapers [2010] NIQB 65 at [10] – [11] especially) should not be

underestimated in this connection. Such powers could conceivably extend to

permitting oral renewal of an application for leave refused on the papers upon

good and sufficient grounds – such as, merely by illustration, the availability of

important documentary or other evidence which could not with reasonable

diligence have been provided at an earlier stage.”