Taking Promptness Seriously

Taking promptness seriously:

Limitation periods in judicial review

Time is of the essence for those seeking judicial review.  CPR 54.5(1) mandates that “the claim form must be filed (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose”.  In addition, s.36(1) Senior Courts Act 1981 allows the High Court to deny leave for JR, or to refuse the relief sought, if it considers that there has been undue delay in applying for judicial review or if granting relief would be detrimental to good administration. I now consider the requirements of CPR 54.5(1):

“Not later than three months after the grounds to the claim first arose”

The three-month period begins the day following the decision for which the claimant seeks judicial review.  If the final day of the period falls on a weekend, bank holiday, or other day when the court office is closed, the applicant may issue the claim form on the first business day afterward.  The grounds to the claim are deemed to arise on the date the public authority makes a decision or otherwise acts in a way that creates rights or obligations.  So in a planning context, it is the actual grant of planning permission rather than the resolution to grant permission that grounds the claim - see R v Hammersmith and Fulham LBC ex p. Burkett [2002] UKHL 23.

“Promptly”

“Promptly” is construed strictly, and claims brought within three months may nevertheless be out of time for want of promptness.  The policy behind this is to ensure that decisions of public bodies are final and can be relied upon by those whom they affect.  Such decisions often affect the interests of multiple third parties besides the applicant and the public authority.  In planning, it is of some relevance that statutory appeals of ministerial decisions to the High Court under s.245 Town & Country Planning Act have a limitation period of six weeks, although the House of Lords emphasised that such a shorter time limit could not be inflexibly applied to judicial review applications.

The court may extend the time limit under its CPR 3.1(2)(a) case management powers, but the parties cannot extend the time limit by agreement amongst themselves.  Courts have refused to extend the time period where the delay was caused by the claimant’s legal team (R v Secretary of State for Health, ex p. Furneaux [1992] 2 All ER 652).

The European dimension

European Union law is primarily enforced by domestic courts applying directives and regulations.  It is therefore important that procedural rules in the courts of England & Wales do not obstruct parties asserting rights or seeking remedies provided by Community law.  In Uniplex (United Kingdom) Ltd v NHS Business Services Authority (C-406/08), [2010] PTSR 1377, the European Court of Justice held that a requirement of the Public Contract Regulations 2006 that proceedings be brought “promptly” offended EU law principles of certainty and effectiveness of remedies.  That requirement mirrors the promptitude requirement in CPR 54.5(1).  The promptness requirement should therefore be relaxed in judicial review applications that engage rights conferred by European law. 

This issue – the Uniplex principle – arose in another public procurement case, SITA UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, where the Court of Appeal held that the correct approach was for the court to disapply the promptness requirement, require that the claim be brought within three months of the applicant knowing that the Directive’s requirements had been infringed, and if necessary use its case management discretion to extend the time limit. 

The point also arose in planning cases where the Environmental Impact Assessment (EIA) Directive was engaged.  The High Court has recently held at first instance that the Uniplex principles applied to JR applications involving EIA issues (R (Buglife) v Medway Council [2011] EWHC 746 (Admin) and R (U & Partners (East Anglia) Ltd) v The Broads Authority [2011] EWHC 1824 (Admin)).  The Court of Appeal considered the issue recently in R (Berky) v Newport CC [2012] EWCA Civ 378, which arose from the construction of the new Morrisons supermarket in Lliswerry, Newport.  The applicant’s substantive grounds were dismissed; however each member of the Court discussed limitation, obiter, in some depth.

The court accepted that the Uniplex principles apply to JR claims where the application of European law is engaged.  Carnwath LJ, as he then was, gave the leading judgment.  This was one of his last judgments in the Court of Appeal before his elevation to the Supreme Court.  He stated that he “saw no reason why the court’s approach to domestic law challenges should be materially affected by the inclusion of a European point”.  The court also considered the effect of the ECJ’s Uniplex ruling on s.31(6) Senior Courts Act 1981.  Carnwath LJ held that the ECJ in Uniplex dealt with commencement of proceedings, whereas s.31(6) grants the court a discretion as to whether or not to grant a remedy once proceedings are underway.  The High Court could thus deny the applicant a remedy after hearing the full application, Uniplex notwithstanding.

Sir Richard Buxton, with whom Moore-Bick LJ agreed on this issue, disagreed.  He argued that, like CPR 54(5)(1), s.31(6) allows the court too wide a discretion as to whether there has been undue delay, and whether there would be hardship to another person or detriment to good administration.  Had the regulation at issue in Uniplex echoed s.31(6) rather than CPR 54(5)(1), the result would have been the same and the enactment incompatible with principle of EU law.  The High Court has also previously expressed this view – R (U & Partners (East Anglia) Ltd) v The Broads Authority [2011] EWHC 1824 (Admin), Collins J.

For my part I prefer Sir Richard Buxton’s interpretation.  European jurisprudence favours purposive interpretations.  The practical effect of both CPR 54(5)(1) and s.31(6) Senior Courts Act is to bar the remedy under certain, subjective, circumstances to those who fail to apply for relief quickly enough, even if within the three month time limit.  This promotes uncertainty.  Nevertheless, with Lord Carnwath having joined the Supreme Court, his view may be a better indication of the direction in which the law will travel domestically.  It is possible that this point will be referred to the European Court in due course.

A further uncertainty is that the higher courts have previously expressed uncertainty as to whether the promptness requirement complies with Art 6(1) European Convention (see Lord Steyn’s speech in the Hammersmith case at [53]). This remains an unresolved question. Given the backlog of cases at the Strasbourg court, it is unlikely to be resolved quickly.

Message for practitioners

The Uniplex principle might reduce the stringency of the CPR 54(5) limitation period where EU issues, such as EIA or habitats in planning matters, are engaged.  However judicial review claims should still be issued with minimal delay after grounds arise. Potential applicants are urged to seek legal advice as early as they can, and if possible before the public authority makes its decision.

Joseph Edwards