Cases about missed time limits give many of us sleepless nights, so (rapid eye movement) you might want to look away now.
I’m fairly sure that Laing J’s judgment from last September in R (Bellamile Limited) v Ashford Borough Council (Laing J, 19 September 2019), about a missed deadline for challenging a local plan under section 113 of the Planning and Compulsory Purchase Act 2004, only appeared online last week. I’ll deal with that after belatedly bringing you up to date as to what happened in the Croke litigation saga after my 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review?
At the time I wrote that blog post, Mr Croke, who had missed the deadline for making a challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision to allow a planning appeal, had secured permission from the Court of Appeal to appeal from a ruling of the High Court that the deadline should not extended.
The full hearing subsequently took place in October 2018. The facts are set out in the judgment, R (Croke) v Secretary of State (Court of Appeal, 1 February 2019):
“Mr Croke was aware that the six-week period under section 288 expired on 23 March 2016, which was the Wednesday before the Easter Bank Holiday. He was also aware that on each working day – that is, on every day from Monday to Friday – the doors of the Administrative Court Office in the Royal Courts of Justice are closed at 4.30 p.m. He intended to go to the court office himself on 23 March. But he missed his train at Haddenham and Thame Parkway railway station, and knowing he would not be able to get to the court office before it closed, he sent an email to Mr Miller asking him to lodge the application on his behalf. In his letter to the court dated 26 April 2016 Mr Croke said he “returned home and emailed the Application, signed Statement of Facts and Grounds and a copy of the Decision being challenged, to Mr … Miller, who was located just a few minutes from the Court and who agreed to act for [him] in submitting the application on his behalf”. However, his attempt to get the Statement of Facts and Grounds to Mr Miller by email at 3.59 p.m. failed, because he mistyped Mr Miller’s email address. He eventually succeeded in sending the document to Mr Miller at 4.06 p.m. Mr Miller said in his witness statement (in paragraph 1):
“1. … I did … at 16.25 hrs attended [sic] at Royal Courts of Justice … on behalf of the claimant, in an attempt to seal the section 288 on behalf of the claimant; I was refused entry by security. The adult male security guard stated the counters were closed.”
In his letter of 26 April 2016 Mr Croke added this:
“… Despite [Mr Miller’s] pleading with them to allow him to proceed to the counter he was refused entry. …”.
At 5.09 p.m. Mr Miller sent an email to Mr Croke to tell him what had happened.
On 24 March, Maundy Thursday, Mr Croke himself went to the Administrative Court Office, arriving there at about 3.25 p.m. There was a queue. Mr Croke reached the front of the queue at about 5 p.m. and attempted to file his application using a standard Part 8 claim form (form N208). A member of the court staff told him he had used the wrong form and would have to file a Planning Court claim form (form N208PC) instead. He gave Mr Croke form N208PC but refused his request that he be allowed to complete it and file it straight away. He told him to return with the completed form N208PC on the next working day. Mr Croke did so on 29 March 2016, the Tuesday after the Easter Bank Holiday weekend, filing his application on the correct form.”
The two issues were (1) whether the statutory period for challenging the Secretary of State’s decision could be extended by a single day from 23 to 24 March 2016 and (2) if so whether from 24 to 29 March 2016.
Traditionally, time limit provisions, such as the six weeks deadline in section 288 for commencing proceedings, are absolute (although where the last day is a day when the court is closed the deadline is extended to the following day – the so-called Kaur v Russell principle – and the deadline is also in principle capable of being extended where there would otherwise be “an unjustifiable violation of human rights”). The position is less absolute where there is an error in a claim form (or the wrong claim form is used) but the filing is within time – the court has discretion to allow the error to be corrected.
Mr Croke argued that the Kaur v Russell principle should be extended to a claimant a further working day “where a prospective litigant had been inside the court building within normal court working hours but had then been prevented from lodging his or her claim on that day by some action or inaction on the part of staff employed within the building, or by some other unforeseen event within the responsibility of the court over which he or she had no control, that day should be treated as being a “dies non”. This would also apply, for example, to a failure of the court’s IT system that had the same effect. Certainty for all parties involved in the proceedings could be safeguarded by ensuring that a time limit would never be extended by more than a single day, and by requiring a litigant in this situation to put all parties with standing on notice, so that they would not rely on the decision under challenge – as Mr Croke had done in a letter to the council dated 23 March 2016. Mr Croke did not seek to support his argument with a submission that the court would in any event have a discretion to extend the statutory time limit on human rights grounds.”
The court did not consider that there was any justification for extending the principle. “To extend it to accommodate the unfortunate facts of a particular case such as this would be to undermine it.” The court went on to consider whether it should exercise a discretion to extend time, on human rights grounds but saw no basis for this. The six weeks’ deadline was contrasted with extradition proceedings: “The relevant documents here would have not been hard to assemble; they should all have been in Mr Croke’s possession. And the drafting of the grounds would not have been an onerous task, even for an applicant who had not instructed a lawyer to do it. This is in stark contrast to the situation of the appellant in Pomiechowski who was in custody, facing extradition, and had only seven days to make his appeal.”
The question of whether there could be a further extension from 24 to 29 March 2016 was accordingly academic, although the court was sympathetic in the circumstances, there having been errors on the part of the court on terms of the references to prescribed forms in its guidance, and given that the form which Mr Croke used contained the “essential content, including the grounds on which the challenge was made”.
So near and yet so far.
R (Bellamile Limited) v Ashford Borough Council (Laing J, 19 September 2019) relates to a claim, made out of time, seeking to challenge the adoption of the Ashford local plan. The facts are set out in detailed and plain terms at paragraphs 8 to 20 but can be summarised as follows:
The last day for making the challenge was 4 April 2019. A paralegal at the firm acting for the claimant took the claim bundle to the Administrative Court at about 3.35 on that last day. She had a cheque for £154, which is the right fee for judicial review claims, but is the wrong fee for a statutory review claim (which this was). She was turned away on the basis that the fee should have been £528. An email went back to the solicitor dealing with the matter from another paralegal communicating some internally contradictory information, suggesting that a different court form (one for a judicial review claim, which this wasn’t) was required as well as the higher fee.
On 5 April 2019, the day after the time limit, the claim was filed using a judicial review claim form and the judicial review fee was paid (£154). The solicitor subsequently on 13 May 2019 asked the court to treat the claim as if it had been made under the statutory review claim procedure, but without any “application for an extension of time for filing, production of the replacement claim form, or any offer of the correct fee at that stage”. These were provided on 23 May, with a request for an extension of time.
In her judgment, after rehearsing these facts, Laing J first deals with the substantive grounds of challenge to the plan and rejects them – so the question of whether the court had jurisdiction to hear the claim in the first place was potentially only of academic interest. However she goes on to consider whether the claim was out of time, reviewing the previous cases, including Croke.
First, she rejects any suggestion that the merits of a claim are relevant to the exercise of any exceptional jurisdiction to extend time.
Secondly, she finds that there is nothing in the statutory scheme for challenging local plans which gives rise to a discretion to extend on human rights grounds. But in any event she is not satisfied that the claimant has “personally done all that he can to bring and notify the claim timeously”, pointing to various unexplained gaps in the evidence before the court and lack of contemporaneous evidence as to what actually happened on that last filing date.
Out of time.
It’s surprising how often these sorts of issues arise – memories for instance of late, and therefore rejected, challenges to the Thames Tideway Tunnel development consent order (Challenge by council to London super-sewer plans dismissed as “out of time” Local Government Lawyer, 19 January 2015 and also the “Blue Green” case – since when the deadline under the Planning Act 2008 for challenges has been amended, but the basic pitfalls still remain).
Simon Ricketts, 21 February 2020
Personal views, et cetera