New provision for permission-stage reply

As had been discussed for some time and as recommended by the Independent Review of Administrative Law, amendments published today will introduce provision for judicial review claimants to file a reply to an acknowledgement of service from 6 April 2024. This will make express provision for something which occurs regularly in judicial review but which, at present, is not a right of claimants and is subject to an application.

New CPR r.54.8A will provide that the reply must be filed not more than 7 days after service of the acknowledgement of service. It will be subject to content and length restrictions to be set via Practice Direction 54A, although it does not appear that the proposed amendments to PD54A have yet been published. It is anticipated that – based on the position currently – replies will need to be concise and confined to true reply points.

The reply must be served on the defendant and any interested parties as soon as practicable and in any event not later than 7 days after it is filed. Notably, the parties will not be able to agree to extend any of the time limits in respect of the reply.

Although this is not made clear by the amendments, it is expected that the introduction of this rule will mean that decisions on whether to grant permission to bring the claim for judicial review will not be taken until the time limit for filing a reply has passed. At present, there is a risk of a decision on permission at any time after the acknowledgement of serviced is filed.

Until this provision comes into force, claimants wishing to file a permission-stage reply will need to make an application following the procedure set out in the Administrative Court Judicial Review Guide 2023:

“The CPR and Practice Directions do not make provision for the claimant to respond to the Acknowledgment of Service during the paper application process. Replies are rarely necessary and are not encouraged. The ACO will not delay consideration of permission on the basis that the claimant wishes to reply. If the claimant considers that there is something in the Acknowledgement of Service to which a reply is essential, a document should be drafted which is concise and confined to true reply points. This should be accompanied by an application for permission to file a reply and should be filed promptly. Any reply received before the case is sent to a judge to consider permission will be put before the judge. Whether to take it into account it is a matter for the judge to decide.”

This article was written by Charles Bishop.