The Civil Procedure (Amendment No. 5) Rules 2013

Made: 26th June 2013

Laid before Parliament: 27th June 2013

Coming into force in accordance with rule 1

Before making these Rules, the Lord Chancellor has consulted the Lord Chief Justice of England and Wales in accordance with paragraph 3(3)(a) of Schedule 3 to the 2013 Act.

Citation, commencement and interpretation

1

These Rules may be cited as the Civil Procedure (Amendment No. 5) Rules 2013 and come into force on the day after the day on which they are made.

2

In these Rules, a reference to a Part or rule by number alone means the Part or rule so numbered in the Civil Procedure Rules 1998[^f00003].

Amendments to the Civil Procedure Rules 1998

3

In rule 1.2 (application by the court of the overriding objective), for “and 80.2” substitute “, 80.2 and 82.2”.

4

In rule 12.3—

• (a) at the end of paragraph (3)(b), omit “or”; and

• (b) after paragraph (3)(c), insert —

; or (d) notice has been given under rule 82.21 of a person’s intention to make an application for a declaration under section 6 of the Justice and Security Act 2013 in relation to the proceedings, and that application has not been disposed of.

5

In rule 30.3, after paragraph (2) insert—

(3) Where in proceedings before a county court the court considers that there is a real possibility that a party would in the course of the proceedings be required to disclose material the disclosure of which would be damaging to the interests of national security, the court must transfer the proceedings to the High Court.

6

After Part 81, insert Part 82 (closed material procedure) as set out in the Schedule to these Rules.

SCHEDULE

Signed

Chris Grayling — Lord Chancellor — 26th June 2013

Explanatory note

(This note is not part of the Rules)

EXPLANATORY NOTE

These Rules amend the Civil Procedure Rules 1998 (“the CPR”) for the purpose of implementing Part 2 of the Justice and Security Act 2013[^f00004] (“the 2013 Act”) by—

• amending rule 1.2 (application by the court of the overriding objective), so that it is subject to rule 82.2 (modification to the overriding objective);

• amending rule 12.3 to ensure that judgment in default is not entered where the reason for a defence not having been served is that the process of considering whether a declaration under section 6 of the 2013 Act should be applied for or made is still under way;

• amending rule 30.3 to provide for transfer to the High Court of proceedings in the county court in which sensitive material is in issue; and

• inserting a new Part 82 containing rules about proceedings in which sensitive material is in issue and it is necessary to ensure that such material is not disclosed where such disclosure would be damaging to the interests of national security. This includes modification of the application of other Parts of the CPR for the purposes of those proceedings).

The 2013 Act makes provision, in Part 2, to allow the use in civil proceedings of “closed material procedure” for the admission and hearing of, and argument in relation to, national security-sensitive material. In such a procedure, the sensitive material is withheld from the other party and is disclosed only to the court and to a special advocate appointed to represent that other party’s interests. Part 2 of the Act provides for a process in which, if it appears that a party to proceedings may be required in the course of the proceedings to disclose sensitive material, the court may make a declaration that the proceedings are proceedings in which a “closed material application” may be made to the court. A closed material application is an application for permission to disclose sensitive material only to the court and special advocate. The initial declaration acts as a gateway to enable closed material procedure to be used where necessary thereafter in the proceedings, but with those parts of the proceedings where sensitive material is not in issue being undertaken in the normal way.

Section I of Part 82 contains rules about the scope, interpretation and application of the Part. Rule 80.2 modifies the overriding objective for the purposes of Part 82 by placing a duty on the court to ensure that information is not disclosed where such disclosure would be damaging to the interests of national security and by requiring that the overriding objective be read and given effect in a way which is compatible with that duty. This, and the rest of Part 82, is, however, subject to section 14(2) of the 2013 Act, which provides that nothing in the relevant sections of the 2013 Act or in rules made by virtue of them is to be read as requiring the court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights.

Section II of Part 82 contains general provisions applying to all proceedings to which Part 82 applies. These include provision for—

• hearings, including the circumstances in which the court is to conduct “closed” hearings (rules 82.6 to 82.8);

• notifying the Attorney General of proceedings, the appointment and functions of a special advocate and the special advocate’s communications with others (rules 82.9 to 82.11);

• modification of rules of evidence (rule 82.12);

• the procedure for closed material applications and objections to proposed communications by the special advocate with the specially represented party (rules 82.13 to 82.15);

• the court to withhold (so that they are given only to the Secretary of State (or, if the person who has to disclose sensitive material is not the Secretary of State, that other “relevant person”) and special advocate, but not to the specially represented party) any, or any part, of its reasons when giving judgment, if it is not possible to give reasons without disclosing information in a way which would be damaging to the interests of national security (rule 82.16);

• applications by the Secretary of State for the court to reconsider the terms of any order or decision given in the Secretary of State’s absence, or the terms of any judgment, to prevent the disclosure of information in a way which would be damaging to the interests of national security (rule 82.17).

Section III of Part 82 contains rules about the making and consideration of an application for a declaration that the proceedings are proceedings in which a “closed material application” may be made to the court, including provision to ensure that the Secretary of State, where not a party to the proceedings, is always notified of the possibility that such an application may be made because sensitive material is in issue, and that the Secretary of State is joined as a party (where not already a party) when a declaration is made.

Section IV of Part 82 contains rules about the review and revocation of declarations that proceedings are proceedings in which a closed material application may be made to the court. Such review and revocation may be of the court’s own motion, or on application, and a formal review must take place once the pre-trial disclosure exercise in the proceedings (defined in rule 82.30) has concluded.

Section V of Part 82 contains a rule about the making and consideration of an application (under section 18 of the 2013 Act) to have set aside a certificate under section 17(3)(e) of the Act (that is, a certificate by the Secretary of State in relation to proceedings seeking disclosure of information in proceedings under the court’s Norwich Pharmacal jurisdiction or any similar jurisdiction, that certain information is sensitive information which should not be ordered to be disclosed).

Section VI of Part 82 contains a rule modifying the application of Part 52 of the CPR (appeals) in relation to appeals to the Court of Appeal against an order on or in relation to an application under section 6, 7 or 18 of the Act, or in “section 6 proceedings” (proceedings where there has been a declaration that the proceedings are proceedings in which a closed material application may be made to the court, or proceedings treated as such proceedings by any enactment), or where the appeal proceedings involve such a matter or are themselves section 6 proceedings.

Footnotes

[^f00001]: 2013 c.18.

[^f00002]: 1997 c.12. Section 1 was substituted by section 82(1) of the Courts Act 2003 (c.39) and further amended by the Constitutional Reform Act 2005 (c.4), section 15 and 146 and Schedule 4, paragraphs 261 and 262 and Schedule 18.

[^f00003]: S.I. 1998/3132. There are relevant amendments in S.I. 2011/2970, rules 3 and 4 and S.I. 2012/2208, rule 16.

[^f00004]: 2013 c.18