Promptness yet again in judicial review: It’s Complicated

29 March 2012 by

Berky, R (on the application of) v. Newport City Council, Court of Appeal, 29 March 2012, read judgment

 Two first-instance cases last year (Buglife, and Broads) considered whether a defendant to a judicial review involving a European point can complain that the proceedings were not commenced “promptly” even though they were commenced within the 3 month time limit. Both judges decided that this argument could not be advanced, even though the wording in CPR rule 54.5(1) reads  “promptly and in any event not later than 3 months.”  The Court of Appeal has now (by a whisker) approved these cases, though there was a vigorous dissent on one important  point from Carnwath LJ. The point was in one sense academic, because the Court thought there was no merit in the underlying proceedings, but the ruling is still important.

This challenge was to the grant of a planning permission to Morrisons permitting development affecting the Institute (see my pic) and a new supermarket in Newport. There were three grounds, an EU point that there had been no Environmental Impact Assessment  as required by the EU EIA Directive,  as well as two domestic challenges on the grounds of bias and irrationality. The proceedings had been commenced a day before the end of the 3 month period – hence, the defendant’s (and Morrison’s) argument that this was not “prompt”.

The challenger, Mr Berky, said no, that argument offended EU law, more particularly a decision of the CJEU, in C-406/08 Uniplex. Uniplex was a public procurement case where domestic regulations contained the promptness/3 month rule. The European Court said that a limitation period which depended on the discretion of the domestic court was “not predictable”, and therefore those UK regulations did not ensure “effective” transposition of the Directive.

All three members of the present Court thought that Uniplex  was, or was probably, applicable in that it prevented the Court relying on the promptitude rule within the 3 month period. But Carnwath LJ thought that a different provision of domestic law, section 31(6) of the Senior Courts Act 1981, allowed the courts to refuse relief for undue delay even within the 3 month period. The majority disagreed. In their view, the discretionary nature of the process under section 31(6) fell foul of precisely the same problems as presented by the promptness/3 month rule. So the upshot was that on a Euro-point the Courts had no discretion to disallow a claim within the 3 month period. But neither member of the majority of the CA thought this a desirable outcome, to say the least. Sir Richard Buxton greeted it with “unfeigned regret”. It could lead to all sorts of practical problems, particularly in the planning context where delays could cost a great deal of money, but the question could not sensibly be resolved without a reference to the CJEU – which could not be justified given that the underlying case was going to fail on the merits. But what then to do about the domestic points, where there was no reason on the face of it not to apply s.31(6) within the 3 month period? Sir Richard Buxton thought that once an arguable Euro-point was in play, the proceedings had to run according to Euro-rules – because all of the grounds were aimed at quashing one decision. Carnwath and Moore-Bick LJJ disagreed – different rules could apply to Euro and non-Euro grounds.

All this tells me that there is a good deal more we are going to see of this argument. Because the judgments on delay were not necessary for the decision refusing permission, the ruling is technically obiter (as we lawyers say). So another Court of Appeal could disagree with the majority in this 2-1 decision, particularly given Carnwath LJ’s undoubted authority on public law and planning matters.

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