Using the urgent procedure – how nervous should we be?

The Question

Given recent judgments castigating misuse of the urgent procedure, just how nervous should Admin Court users now be when considering using Form N463?

The Short Answer

Form N463 can be used with confidence:

• before issuing, at the time of issuing, or within extant proceedings;
• where consideration is reasonably required within 7 days; and
• where what is sought is either (a) interim relief preventing a defendant from doing something with irreparable consequences; or (b) expedition of the next stage in proceedings (generally the AOS) to hours/days.

Form N463 should not be used:

• where consideration within 7 days cannot be justified; or
• if an abridged timeframe sought is weeks rather than hours/days (eg at the time of filing to seek only a direction that permission be decided by a certain date, without abridging time for the AOS).

In the above two cases, what should be used is (a) section 8 of the Claim Form, with the application highlighted in the covering email to the Administrative Court Office, or else (b) an N244.

It is essential to:

• complete all sections of Form N263 in full, without relying on cross-references to other documents; and
• comply with the duty of candour by including, prominently, all relevant information which undermines the application.

The Long Answer

Key resources

Claimants considering using the urgent procedure should refer to:

1. The new Form N463 (updated February 2022) – here
2. Practice Direction 54B (introduced in May 2021) – here
3. The Administrative Court Guide 2021 (the “Guide”), section 17 – here
4. The recent cases: R (DVP & Others) v SSHD [2021] EWHC 606 (Admin) – here and In re An Application for Judicial Review [2021] EWHC 1895 (Admin) – here

When to use Form N463

Form N463 is generally filed with a Claim Form (Guide §17.4.1). In exceptionally urgent cases it can be filed with an N244 prior to issuing (Guide §17.4.2 with §16.2). The Administrative Court Office confirmed to the Administrative Law Bar Association when publicising the new Form N463 that it can also be used within existing proceedings.

R (DVP) v SSHD

This was a 2021 Divisional Court judgment following a reference under the Hamid jurisdiction. The underlying claims were six different JR challenges to the use of a former military facility to accommodate asylum seekers during the pandemic. The Claimants used Form N463 to apply for expedition and interim relief, including an urgent health review of those in the camp and the transfer out of those with urgent health needs. Consideration within 72 hours was sought. Swift J refused the application and referred the case to the Divisional Court under the Hamid procedure.

The Hamid procedure is a facet of the court’s jurisdiction to regulate its own procedures and to enforce the overriding duties owed to it by legal professionals: see R (Hamid) Secretary of State for Home Department [2012] EWHC 3070 (Admin). Although the Hamid jurisdiction originated in the field of immigration, it is not confined to immigration or to public law claims. A solicitor or counsel may be asked to show cause why their conduct should not be considered for referral to the relevant regulatory body or why the representative should not be admonished. (See further section 18 of the Guide.)

In DVP, the lead solicitor with responsibility for the six claims and the Director of Compliance at Duncan Lewis LLP were directed to appear before the Divisional Court to address the concerns identified in Swift J’s order and to give reasons why they should not be reported to the SRA.

There had been “significant abuse” of the urgent procedure (§57) because the Claimants had failed to state that they themselves had already been transferred out of the facility. This breached the duty of candour and meant the application was not urgent. There had been significant delay in making the application. Duncan Lewis LLP were not instructed by others at the facility on whose behalf they purported to make the applications. Further, the Claimants had taken umbrage with the Defendant’s written submissions in answer to the urgent application, when it was only these submissions that informed the Court that the Claimants had already left the facility. The lawyers’ acceptance of responsibility and apologies were sufficient to avoid referral to the regulator.

The Divisional Court gave the following guidance:

• Prohibition of abuse: It is of the utmost importance that the limited resource of the urgent procedure is not abused, and any such abuse will be “met with appropriate sanction” (§7). Those using the urgent procedure must adhere to the rules “to the letter” (§7).
• Duty of Candour: “The duty of candour in this context, means that the claimant must disclose any relevant information or material fact which either supports or undermines his case. […] The information the claimant puts before the Administrative Court in support of an urgent application must be presented in a fair and even-handed manner, and in a way which is not designed simply to promote his own case.” (§9) The court will set aside an order if there has been a breach of the applicant’s duty of candour (§10). Matters central to the application should be “’front and centre’ on the face of the application” (§51).
• Notice: Only an exceptionally urgent application may be made without any notice to the defendant at all, otherwise (limited) notice is required (§9). The Court will generally make an order allowing the defendant a short time to file written submissions, or list the matter for a hearing, unless irreversible prejudice would be caused to the claimant in the meanwhile (§19). The Court is always assisted by being informed by the Defendant of its position (§47).
• Form N463: All sections must be completed. Answers may not merely cross-refer to other documents (§16). Form N463s should be reviewed before they are filed (§64).
• Sanctions: Sanctions for abuse of the procedure include adverse or wasted costs orders, use of the Hamid procedure, and referring professional representatives to their professional regulator for consideration of disciplinary action (§11).

Re an Application for Judicial Review

This was a second 2021 Divisional Court judgment following a referral under the Hamid jurisdiction, within the context of a JR challenge to the vires of certain Brexit-related regulations. Form N463 was used to apply for an expedited timetable including permission to file a Reply and a permission decision by a certain date. Consideration was requested within 48 hours, in circumstances where the order sought would not be effective for another four weeks (§3). Swift J refused the application and an order of Tipples J required leading counsel to attend court to address the concerns raised.

Lewis LJ held that there was no justification for use of the urgent procedure since the Claimant was not seeking interim relief and was not seeking to abridge time for the AOS. The application should have been made in the Claim Form. Use of Form N463 was a “serious error of judgment” (§9). Leading counsel was not referred to the BSB as this was an error made in good faith and because counsel apologised and confirmed he would do differently in future (§10).

The Divisional Court explained that, in relation to expedition, Form N463 was to be used only where abridgement of the time for an AOS to hours or days is sought. Where 21 days is to be allowed for an AOS, but abridged time for a permission decision is sought, “[t]he appropriate place for that application was in section 8 of the N461, together with a covering letter or email to the Court Office, drawing attention to the need to determine those parts of the application form before the end of the 21-day period for the filing of an acknowledgement of service. If counsel had had any real doubt about whether the Administrative Court Office would take steps to ensure that the papers were put before a judge within that timescale, he could have made an application on notice using Form N244” (§26).

Conclusion: Tips and Tricks

Claimants should:

• always use Form N463 when making an urgent application, completing all mandatory fields (PD 54B §1.1, DVP at §14)
• attach a draft Order (Form N243, DVP at §15)
• file an indexed and paginated application bundle containing Form N463 and any other material required by PD 54B (PD 54B §1.3) (this will often be the Permission Bundle)
• serve the application bundle on the Defendant and any IP before the application is filed with court where possible, or else at the same time that the application is filed (PD 54B §1.7)
• advise the Defendant and IP in advance of the nature of the application and the fact that they may make representations (PD 54B §1.7)
• if the representative was instructed late, explain why (Guide §17.3.1.1)
• if the form is filed only shortly before the end of the working day, explain why it was not filed earlier in the day (Guide §17.3.1.1)
• where the application is for interim relief: (a) take reasonable steps to investigate matters material to the investigation; (b) file a witness statement in support; and (c) identify all matters undermining as well as supporting the application (PD 54B §§2.2-2.4). Following DVP, Claimants should be particularly mindful of the duty of candour, displaying adverse information prominently.
• where the application is for expedition, include a statement of the position of the defendant and any IP or else explain the steps taken to ascertain that position (PD 54B §3.1)
• in London, file the application by email between 10am and 4:30pm on working days to immediates@administrativecourtoffice.justice.gov.uk; outside London, file at the relevant Admin Court Office as set out in PD 54C (PD 54B §§1.4-1.5)
• in the event of inadvertent abuse of the procedure, accept responsibility and apologise to the court to manage the risk of referral to a professional regulator (DVP at §81)

Claimants should not:

• omit or bury material which undermines rather than supports an application for interim relief (DVP at §9)
• use Form N463 where neither interim relief nor abridgement of the time for the next step in proceedings to hours/days is sought (In re An Application for Judicial Review at §26)
• leave mandatory sections of the N243 blank or merely cross-refer to other documents (DVP at §16)

Defendants should:

• inform the Claimant of its position when given notice of an urgent application, or inform the Court of its position on an application without notice (DVP at §47)