The Administrative Court Judicial Review Guide 2024 – Key updates

The ACO Guide is regularly updated every year to reflect legislative changes, case law developments and amendments of the Civil Procedure Rules.

The Administrative Court published an updated version of the ACO Guide on 12 September 2024. We have summarised below the key updates and developments introduced in the latest version of the Guide. 

1. The introduction of e-filing in the Administrative Court

E-filing via the CE-File electronic file system allows court users to issue and file documents, pay court fees and review and track their cases online. The system has already been in use for some time in a number of Courts including the Business and Property Courts and the Court of Appeal (Civil Division).

The introduction of the CE-File electronic file system in the Administrative Court had been anticipated since the 2023 edition of the ACO Guide.

The ACO Guide confirms that e-filing via the CE-File electronic file system will be introduced in September 2024 (although we understand from separate correspondence with the Court that the system may only go live for external users from 1 October 2024). We understand that the roll out of the CE-File system will be subject to a transitional period during which the use of the new system by professional users will remain optional, and that even after that transitional period the use of the CE-File system by litigants in person will not be compulsory.

E-filing will continue to be unavailable for applications in which urgent consideration is sought, which will need to continue to be lodged using the procedure as set out at section 17 of the ACO Guide.

Separate e-filing guidance will be made available on the ACO website.

2. The introduction of CPR Part 54.8A (allowing claimants to file a reply to an acknowledgment of service)

Following the procedural recommendations of the government’s Independent Review of Administrative Law, the Civil Procedure Rules in relation to Judicial Review were amended on 6 April 2024. One of the key changes is new CPR Part 54.8A, which allows claimants to file a reply not more than 7 days after service of the acknowledgment of service.

The ACO Guide paragraph has been updated to reflect the changes introduced by CPR 54.8A. The Guide emphasises that replies "should only be filed where it is considered necessary to assist the court in determining permission where, for example, the acknowledgment of service raised a discrete point that was not addressed in the claim form".

The ACO Guide further notes that a reply "should not be used to rehearse matters already referred to in the claim form. A reply should be as concise as possible and should not exceed 5 pages. If a Claimant seeks to file a reply which exceeds 5 pages, the court’s permission will be required. The application must be made by application notice. If a party files a reply which the court considers to be unnecessary then the court may make any order it considers appropriate, including costs against the Claimant."

3. The duty of candour

The 2023 version of the ACO Guide contained significant updates to the chapter addressing the Duty of Candour. In particular, it sought to address a longstanding uncertainty as to the application of the duty of candour at permission stage (i.e. before the Court has granted the Claimant permission to proceed with the judicial review application). 

From 2023, the ACO Guide asserted that the duty of candour has been recognised as applying at "all stages of judicial review proceedings, including when responding to the pre-action letter, in Summary Grounds, Detailed Grounds, witness statements and in counsel’s written and oral arguments. However, what is required to discharge the duty at the substantive stage will be more extensive than what is required before permission has been granted."

The 2024 version of the ACO Guide introduced more limited amendments in connection with another longstanding area of dispute between claimants and defendants, namely whether the duty of candour requires a party to disclose particular documents as opposed to merely summarise the contents of such documents.

The ACO Guide now makes clear that good practice requires disclosure of the document relied upon by the party only in circumstances where "the document is significant to the decision under challenge". While this is a welcome reminder that the duty of candour is not equivalent to standard disclosure, the "significance" of a particular document to the decision under challenge may of course be itself a point of dispute between the parties, particularly in circumstances where the party seeking disclosure has limited or no knowledge of the contents of that document.

4. Redaction of documents

The ACO Guide provides that a document disclosed pursuant to the duty of candour may be redacted if:

1. they contain information which is confidential and irrelevant to the issues in the case;
2. they attract legal professional privilege;
3. they are subject to a statutory restriction on their disclosure; or
4. they attract public interest immunity

The amendments to the ACO Guide reflect a recent line of case law in which the Courts have been increasingly critical of the practice of some public authorities to redact the names of junior civil servants as a matter of course (see R (IAB) v Secretary of State for the Home Department [2024] EWCA Civ 66).

In line with the latest case law, the ACO Guide now makes clear that text which explains the provenance and context of a document, such as the name of the sender, recipients or copy recipients of a document (even if these are junior officials or external contractors) should not be redacted as a matter of course, although it will usually be permissible to redact contact details (e.g. email addresses) if that is thought to be useful.

While the requirement that a party wishing to redact such information from a document to make an application to the Court for permission to do so has been deleted from the 2024 version of the ACO Guide, additional guidance has been provided on the explanation that the party seeking to disclose a redacted document will be expected to provide:

• When redacted documents are exhibited to a witness statement the reason for redaction may be given either in that statement or a separate witness statement.
• If the redaction is made on grounds of legal professional privilege the explanation should be given in a witness statement made at the solicitor with conduct of the case.
• While the explanation need not be elaborate it should "be such as to afford the receiving party a sensible opportunity to decide whether to apply for disclosure of the unredacted document. The provision of single word explanations, such as “relevance” or “privilege” will rarely be sufficient".

5. Interim relief

The interim relief section of the ACO Guide has been updated to reflect the Court of Appeal judgment earlier this year in R (RRR Manufacturing Pty Ltd) v British Standards Institution [2024] EWCA Civ 530, in which the Defendant, advised by DAC Beachcroft LLP, successfully overturned an injunction and mandatory order, which (a) prevented the Defendant from suspending or withdrawing certification of the Claimant's medical device and (b) required the Defendant to use its powers to extend or renew the certification until final determination of the Judicial Review claim.

We have discussed in more detail the impact of that judgment on interim relief applications in Judicial Review proceedings in this separate public law update.

6. Remote hand down of judgments and guidance on observing remote hearings

For completeness, it is worth noting that the ACO Guide now contains a number of new annexes, which we will only briefly mention for the purposes of this update:

• Annexes 5 and 6 to the ACO Guide set out new detailed guidance addressing the remote hand down of Administrative Court judgments in England (Annex 5) and Wales (Annex 6).
• A new Annex 7 sets out guidance on applications for observing hearings remotely.

Please get in touch with our public law team if you have any queries about the ACO Guide.