New CPR Part 68 on assimilated case law references and interventions

In this post, Jack Williams of Monckton Chambers discusses new Part 68 of the Civil Procedure Rules (“CPR”), which comes into force on 1 October 2024 and makes provision for references to higher courts and interventions by the law officers pursuant to sections 6A to 6C of the European Union (Withdrawal) Act 2018 concerning departure from assimilated case law.

Background: new reference and intervention powers

Section 6 of the Retained EU Law (Revocation and Reform) Act 2023 (“REULA”) will, once in force, make amendments to section 6 of the EU (Withdrawal) Act 2018 (“EUWA”). Most notably:

• the test for departing from assimilated case law will be modified to provide a gentle nudge to the courts to depart more readily;
• the courts which can depart from assimilated case law will be defined in statute, rather than secondary legislation;
• the test for departure from assimilated case law in section 6 of the EUWA (as amended) is disapplied for competition law cases; it is clarified that the test for departure from assimilated case law in such cases is instead that in section 60A of the Competition Act 1998;
• a new reference procedure will be introduced allowing points of law on assimilated case law to be referred by lower courts (which would be bound by such law) to higher courts (which are not); and
• new rights of intervention for the UK or devolved law officers are introduced in circumstances where higher courts are considering departing from assimilated case law.

Background: temporal application of new powers

Section 6 comes into force on 1 October 2024: see the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) Regulations 2024 (SI 2024/714) (“the Regulations”).

Note, however, that regulation 3 of the Regulations provides that the new test for departure from assimilated case law and the right of the law officers to intervene do not apply to those cases where, before 1 October 2024, an appeal to the higher court: (a) lay as of right; (b) lay or was referred by way of case stated; (c) was granted leave or permission; or (d) was commenced by any other originating process.

By contrast, the domestic reference procedures in sections 6A and 6B on the EU(W)A do appear to operate retrospectively: there is no reference to them in regulation 3 of the Regulations or section 22(5) of the REULA.

Section 6A EUWA establishes a new reference procedure enabling a lower court or tribunal, which is bound by assimilated case law, to refer a point of law concerning assimilated case law to a higher court to decide whether to depart.

Section 6B EUWA establishes a new procedure for the law officers of the UK Government and their counterparts in Scotland, Wales and Northern Ireland to refer a point of assimilated case law to a relevant higher court on a case which concluded in the lower courts.

CPR part 68: the new procedures for domestic references and intervention powers

New CPR Part 68 is introduced by the Civil Procedure (Amendment No. 3) Rules 2024 (SI 2024/839). It introduces three new procedures to facilitate the effective operation of sections 6A – 6C of the EUWA by providing for the processes by which:

• the County Court of High Court (which continue to be bound by assimilated case law) may refer points of law which arise from that case to a higher court to decide whether to depart from it – see rules 68.2 – 68.68.5 and 68.7;

• for a law officer to make a reference to the Court of Appeal to consider departure from assimilated case law- see rules 68.6-68.7; and

• the Court of Appeal will consider submissions about whether it should depart from assimilated case law – see rule 68.8.

Each is addressed in turn.

References under section 6A of the EUWA

References from proceedings before the County Court or High Court

An application by a party to proceedings before the County Court or High Court seeking a reference to a higher court is to be made under CPR Part 23 using the usual application form: r. 68.2(1). Under r. 68.2(2) the application notice must: (a) state the point of law which arises on assimilated case law and the question to be determined on that point of law; (b) set out the reasons for considering the point of law to be of general public importance; and (c) describe the relevance of the point of law to the proceedings before the court. These requirements match those in section 6A(4) of the EUWA that the point of law must be “relevant to the proceedings” and be “of general public importance”.

If the County Court or High Court is considering whether to make a reference of its own motion under section 6A(2)(a) of the EUWA, it must invite the parties to the proceedings to make representations: r. 68.2(3).

If the County Court or High Court makes a reference, a copy of that reference must be sent by the court to the parties to the proceedings and the law officers: r. 68.2(4). Pursuant to section s 6B and 6C of the EUWA, the relevant law officers are:

• the Attorney General for England and Wales;
• the Advocate General for Scotland ;
• the Advocate General for Northern Ireland;
• the Lord Advocate;
• the Counsel General for Wales; and
• the Attorney General for Northern Ireland.

References to the Court of Appeal

Any reference filed (by the referring court or tribunal) with the Court of Appeal must: (a) state the point of law which arises on assimilated case law and the question to be determined on that point of law; (b) set out the referring court or tribunal’s reasons for considering the point of law to be of general public importance; and (c) describe the relevance of the point of law to the proceedings before the referring court or tribunal. See r. 68.3(1)-(2). These are, of course, a mirror of the requirements for applications to the County Court and High Court for a reference as described above (see r.68.2) and the requirements of the Act.

Before the reference is filed with the Court of Appeal a copy of it must have been sent by the referring court or tribunal to all parties to the proceedings before the referring court or tribunal, and the law officers (as defined above). Again, in respect of the County Court and High Court, that is a mirror of the requirements in r.68.2.

Both (i) the parties to the proceedings before the referring court or tribunal and (ii) the law officers may make written submissions to the Court of Appeal on whether the Court of Appeal should accept the reference: r. 68.3(4). These must be filed (and served on each other party and the law officers) within 14 days of the reference being sent unless the Court of Appeal directs otherwise: r. 68.3(5). This is a tight turnaround, since the default is that time runs from when the reference was sent by the referring court, not its receipt. This is something upon which the rule-makers may wish to reflect upon.

The default position is that the Court of Appeal will determine whether to accept the reference on the papers without an oral hearing (r.68.3(6)) unless the judge considering the reference is of the opinion that the question of whether to accept it cannot be fairly determined on paper without an oral hearing (r.68.3(7)). Any direction to hold an oral hearing may identify any issue on which the submissions should specifically be focused at the oral hearing in order to assist the court to determine whether to accept the reference, and may direct any law officer or party to the proceedings before the referring court / tribunal to serve and file written submissions and to attend the oral hearing: r.68.3(9).

Any such oral haring must be listed no later than 14 days from the date of direction of an oral hearing and must be before the judge who made that direction (unless the court directs otherwise): r.68.3(7).

Interestingly, “any” person may make written submissions to the Court of Appeal as to whether the Court should accept a reference under section 6A of the EUWA and also request that the Court take them into account: r.68.4(1). It is not immediately obvious to me how such persons (who must, logically be persons other than the parties to the proceedings or the law officers) would be aware of an application for a reference or a reference having been made by the referring court or tribunal (other than if they were sat in open court when the reference was made, or hear about it on the ‘grape vine’) as there appears to be no publication obligations in either rules 68.2 or 68.3. It would presumably be good practice for the County Court or High Court to therefore publish a short judgment or ruling that a reference is being made (and the terms of such reference) so that it is publicly reported. This is something that the rule-makers may wish to make explicit.

In any event, any such submissions must be sent by the Court of Appeal to the referring court / tribunal, the parties to the proceedings, and the law officers: r.68.4(2). They can be taken into account to such an extent as the Court of Appeal deciding whether to accept the reference considers appropriate, or that judge may decline to take them into account at all: r.68.4(3). The explicit provision that the judge may decline to take them into account at all is a curious provision that the rule-makers may wish to reflect upon: taking submissions into account does not, of course, mean they have to be followed. It would be strange for any judge to fail to consider submissions at all.

Once the Court of Appeal has accepted a reference, it must give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the hearing of the reference: r. 68.7. The court must also send a copy of the decision on whether to accept the reference to the referring court or tribunal and the parties to the proceedings as well as the law officers, and any other person who made submissions: r.68.3(10) and r. 68.5 (which has some overlap with r. 68.3(10)). Again, it might be worth the rule-makers considering the introduction of a publication obligation of decisions on the acceptance of references so that such decisions can be monitored and other parties learn from the approach adopted by the court.

References to the Supreme Court

CPR Part 68 does not cover references to the Supreme Court. Instead, the Supreme Court has recently published a consultation response and draft rules (see, in particular, rules 25 and 46-48 here). Note, also that draft rule 45 covers references to the CJEU under the Withdrawal Agreement and Windsor Framework.

I may post a blog on these separately once they are finalised. The original version of the consultation response stated that the revised Supreme Court Rules 2024 were expected to be laid in Parliament in September 2024 and come into force in October 2024; however, an addendum added later states that the comment of the rules is “now likely to be December 2024”. It is therefore not clear (at least to me) what process the Supreme Court will apply for any references made between October and December (considering the EUWA amendments will take effect from 1 October). I suspect it would be prudent for parties to apply the draft rules, but consultation with the Supreme Court registry is probably advisable.

 New practice directions will also be introduced to supplement the rules.

References under section 6B of the EUWA

New rules 68.6 – 68.7 set out the process for references on assimilated case to the Court of Appeal by law officers under section 6B of the EUWA. The law officers are identified above.

Pursuant to r. 68.6(2) any reference filed with the Court of Appeal must:

• state the question to be determined on the point of law which arose on assimilated case law in proceedings before a court or tribunal (other than a higher court) which have concluded.

• confirm that the conditions in section 6B(1) of the Act are met. These are: (i) proceedings before a court or tribunal (other than a higher court) have concluded; (ii) no reference was made under section 6A in relation to the proceedings; and (iii) either (i)there has been no appeal, or any appeal has been finally dealt with otherwise than by a higher court.

• describe the relevance of the point of law to the concluded proceedings.

• if the reference is made by the Lord Advocate, the Counsel General for Wales or the Attorney General for Northern Ireland, confirm that the point of law relates to the meaning or effect of relevant Scotland legislation, relevant Wales legislation or relevant Northern Ireland legislation, as applicable. This corresponds with the relevant restrictions in section 6B(2) of the EUWA.

Any such reference must be served on each of the other law officers “before” it is filed with the Court of Appeal: r.68.6(3). The rule-makers may wish to reflect upon whether it is necessary for service of a reference “before” filing, or whether “at the same time” or even “shortly thereafter” would be sufficient.

Once the Court of Appeal has accepted a reference, it must give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the hearing of the reference: r. 68.7. Under section 6B(5), the Court of Appeal must accept the reference that fulfils the conditions in section 6B, and decide the point or points of law concerned.

Departing from assimilated case law

Where any higher court is considering any argument made by a party to proceedings that the court should depart from assimilated case law, the law officers (as listed above) are entitled to notice of the proceedings, and are entitled to be joined as a party on giving notice to the court at any time during the proceedings: see section 6C of the EUWA (once amended on 1 October).

CPR r. 68.8 puts that into practice. It states that notice of the proceedings must be given to the law officers and to all parties to the proceedings, and that if any such law officer notifies the court that they wish to be joined such notification shall be given to all other parties to the proceedings as well.

Then, the Court of Appeal may not decide the question whether it should depart from assimilated case law unless 28 days, or such other period as the court directs, has elapsed since the giving of notice of the proceedings to the law officers: see r. 68.8(5).

In practice, this would seem to commend any argument that the Court of Appeal should depart from assimilated case law to be identified at least 28 days before the start of any hearing, such that the notice of the proceedings can be provided to the law officers enabling them to participate in the hearing. Otherwise, there is a risk that the hearing will have to be postponed unless the Court is prepared to accept written submissions or hold an additional oral hearing before it decides the question whether it should depart or not. The rule-makers may wish to consider making explicit provision for a scenario when departure submissions are made later than 28 days before the start of any hearing.

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