Promptness in judicial review

I have commented previously in this blog on cases which have emphasised the need for promptness when applying for judicial review. One aspect of this rule which has been a source of potential difficulty is its possible incompatibility with European law. This was a point which was raised by Lord Steyn in the course of his speech in the House of Lords in Burkett. However, the ECHR (in the case of Lam v UK) had already dismissed the suggestion that the slightly flexible formulation of the period within which an application for judicial review should be made (promptly, and in any event within three months) produces legal uncertainty as to the applicant’s resort to the Court, contrary to Article 6. It seems that Lam was not cited to the House of Lords in Burkett.

The point arose again in Uniplex (UK) Ltd v NHS Business Services Authority in which the European Court of Justice gave judgment on 28 January 2010. The issue before the Court was whether a requirement that proceedings must be brought “promptly” was consistent with the protections of Directive 89/665. The ECJ confirmed (on the basis of earlier case law) that, in order to achieve an effective review of decisions which is as swift as possible, as required by Article 1(1) of Directive 89/665, Member States may impose limitation periods for actions requiring tenderers to challenge promptly preliminary measures or interim decisions in respect of public procurement contracts. However, that objective of rapidity must be implemented alongside compliance with requirements imposed by the need for legal certainty and the principle of effectiveness. The limitation periods set down in national law must not render impossible or excessively difficult the exercise of Community law rights.

Following the Opinion given by Advocate-General Kokott, the ECJ held that a limitation period whose duration lay in the discretion of the national court was not predictable as to its effects and did not therefore effectively transpose Directive 89/665. A provision requiring proceedings to be brought “promptly”, failing which they might be dismissed, was therefore precluded. The ECJ also considered the circumstances in which the national court might exercise its discretion to extend the limitation period. The Court held that it is for the national court to interpret domestic provisions for limitation periods in a way which will accord with the objective of Directive 89/665. Thus, the national court must, as far as is at all possible, interpret the national limitation provisions in such a way as to ensure that time did not begin to run until the claimant knew, or ought to have known, of the infringement. Should it not be possible to interpret the provisions in this way, the national court would be obliged to extend the time period provided for in domestic legislation so as to run from the date upon which the claimant knew, or ought to have known of the infringement.

The Uniplex case was concerned primarily with public procurement, and doubt was expressed by commentators at the time as to whether it would be of wider application in relation to judicial review, for example in planning and environment law cases. It was this issue which finally came before the High Court in R (Buglife) v. Medway Council [2011] EWHC 746 (Admin) in which judgment was given on 30 March 2011.

This was an application for permission to bring proceedings by way of Judicial Review, seeking the quashing of a planning permission issued by the Council in circumstances in which Buglife challenged the adequacy of an EIA. Both Medway and the developer sought to have Buglife’s challenge ruled out on the ground that the proceedings had not been filed promptly (just 2 days before the expiry of the 3-month deadline). Buglife contended that it had an unqualified entitlement to a period of up to three months before it must file its claim, relying on the decision of the ECJ in Uniplex.

Medway and the developer contended that the Uniplex decision was confined to the relevant time limits imposed for proceedings associated with the Procurement Directive, whereas the current proceedings were associated with the EIA Directive. Furthermore, the provision challenged in Uniplex had been contained in the Regulations intended to give effect in domestic law to the Procurement Directive. In the present case, the challenge was to a particular application of a general provision relating to all judicial review proceedings.

The defendants also argued that the Environment Directive only contained a very general requirement on Member States to give effect to the directive in their respective domestic laws. However, the Deputy Judge did not accept the limitation of the Uniplex decision contended for by Medway and the developer. The decision applied general and core principles of Community Law which are applicable to all directives. He held that the requirement of certainty and the application of that requirement to limitation periods imposed on those seeking to enforce their rights arising under the directive in a national court has general application to such enforcement proceedings arising out of any directive. In those circumstances, the Deputy Judge said it was clear that there was a failure of the legislature to transpose the Environment Directive into domestic law in a way which avoids uncertain time limits arising from the requirement of promptness. That requirement, he held, is not now enforceable in the English courts following the Uniplex decision.

In the event, permission to proceed was refused on other grounds. Buglife might seek to take the matter to the Court of Appeal, but if they were to do so they might come up against a problem. The decision of the Deputy Judge seems to overlook the decision of the Court of Appeal in Hardy and Maile v. Pembrokeshire County Council [2006] EWCA Civ 240, (a case to which I have drawn attention on two previous occasions in this blog) in which Keene LJ observed that there are a number of problems with this line of argument. First and foremost, this very point had been advanced before the European Court of Human Rights in the case of Lam v. United Kingdom, Application 41671/98, and rejected. That was a case concerning an application for leave to seek judicial review of a planning decision, where leave had been refused on the ground of lack of promptness. The applicant contended before the ECHR that the terms of Order 53, rule 4(1) of the Rules of the Supreme Court (the predecessor to CPR 54.5(1)) were contrary to the principles of legal certainty, and reliance was also placed on Article 6. The ECHR held that this complaint was manifestly ill-founded, stating:

“In so far as the applicants impugn the strict application of the promptness requirement in that it restricted their right of access to a court, the Court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their situation on the strength of administrative decisions.”

Keene LJ referred to several other authorities which pointed in the same direction and concluded that for all these reasons and despite the doubts expressed obiter in Burkett, there was no realistic prospect of the applicants in that case successfully establishing that CPR 54.5(1), insofar as it requires a claim form to be filed "promptly", is contrary to European law and unlawful.

I think that might be enough to negative the proposition (which has been expressed by at least one commentator) that the Uniplex decision is not confined to procurement cases but applies to other cases involving EU directives. My advice to clients will continue to be that if they wish to apply for Judicial Review, they must do so “promptly”, even in cases involving EIA or the Habitats Directive. Equally, I expect that the Courts, following Hardy rather than Buglife, are likely to continue to rule out claims under CPR Part 54 which have not been brought “promptly”.

© MARTIN H GOODALL