Nicholas Gibson, Matrix Chambers:
As all public lawyers know, a judicial review claim must be brought: “promptly and in any event not later than three months after the grounds to make the claim first arose”: CPR r. 54.5(1) clearly states as much. But how much time does the requirement to act “promptly” allow a prospective claimant in practice? Where does the limit lie?
The answer to this question is less clear. The prospective claimant’s lawyers are compelled to foray into the twilight world of judicial discretion in their efforts to advise as to when the time limit for bringing a judicial review claim will expire in any particular case.
Lord Bingham observed that, “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. … The broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law.” (See his Sir David Williams lecture of 16 November 2006).
So, is the requirement of promptitude under CPR r. 54.5(1) so broad and loosely-textured as to tend to arbitrariness and thereby to offend the rule of law? Here, as in so many other matters nowadays, the EU and England are divided.
In a judgment handed down on 28 January 2010, the European Court of Justice decided that a time limit in procurement regulations based on promptitude – expressed in terms identical to CPR r. 54.5(1) – gave rise to uncertainty and infringed the principle of effectiveness and was, therefore, contrary to EU law: see Uniplex (UK) Ltd v NHS Business Services Authority.
Yet the English courts had decided precisely the opposite a little less than four years earlier in R (Hardy) v Pembrokeshire CC. Despite doubts expressed obiter by Lords Steyn and Hope previously in R (Burkett) v Hammersmith and Fulham LBC, the Court of Appeal in Hardy rejected the argument that the requirement of promptitude rendered the time limit in judicial review insufficiently certain. Relying on Strasbourg authority in Lam v United Kingdom App. No. 41671/98 (judgment of 5 July 2001), the Court of Appeal observed that, “the requirement was a proportionate measure taken in pursuit of a legitimate aim.” For once, at least, Strasbourg and England were aligned.
How far, then, does the decision in Uniplex go? What are the limits of its application in the English courts? There has been a flurry of findings in the nearly two years since Uniplex as the English courts and parties attempt to answer this question. But the answer is, perhaps, ultimately unsurprising.
The effect of Uniplex is not narrowly confined to the application of time limits in the procurement context, but applies generally to any time limits imposed on those seeking to enforce their rights arising under an EU directive in an English court: this has now been confirmed in both R (Buglife) v Medway Council and R (U & Partners (East Anglia) Ltd) v Broads Authority. (An earlier view to the contrary, expressed in R (Carroll) v Westminster CC [2010] EWHC 2019 (Admin), seems rightly to have been ignored.)
But Uniplex’s reach does not extend beyond the scope of EU law: the requirement that judicial review proceedings be commenced promptly, as well as within the three-month time limit, remains applicable in cases that do not raise any issue of EU law. This was confirmed recently in R (Macrae) v Herefordshire DC (permission to appeal was granted (see [2011] EWCA Civ 1475 and [10] in particular) and the appeal heard 9 March 2012), but the same conclusion had already been reached (in one sentence) in R (Salford Estates (No.2) Ltd) v Salford CC (see [2]).
Unsurprising it may be, but is this limitation on Uniplex also unsatisfactory?
The English courts generally do not appear to think so: they have emphasised the flexibility that the promptitude requirement offers and the advantages that such flexibility brings. In Hardy, for example, the Court of Appeal warned against the excessive rigidity of absolute certainty, noting that the degree of promptness required will vary from case to case depending on the subject-matter and other circumstances: see [14]-[15]. It has also been said that “there is a need for public bodies to have certainty as to the legal validity of their actions”, that being the rationale for the wording of CPR r. 54.5 (see Lord Steyn at [44] in Burkett).
But the need for a public body to have certainty would be satisfied by a fixed short time limit for bringing a challenge to the validity of its actions. Indeed, surely a fixed time limit would bring considerably more certainty – not just for prospective claimants, but for public bodies as well – than the promptitude requirement offers. If the problem is that a three-month fixed time limit is too long in specific types of case, then a preferable solution would be to legislate for shorter fixed time limits in such cases. (This takes us back to an argument similar to that for a “six weeks rule” in planning cases, started by Laws J (as he then was) in R (McKeown) v Ceredigion CC [1998] 2 PLR 1, seemingly ended by Lord Steyn in Burkett at [53], but now (perhaps) resurrected by Collins J in R(U) v Broads Authority at [45].)
The virtue of flexibility and the perils of excessive rigidity are perhaps also exaggerated. The fact that the degree of promptness required will vary from case to case depending on the subject-matter and other circumstances is precisely why it is so difficult for a prospective claimant to know how long it has to act. This has been said to have the paradoxical consequence of potentially increasing the amount of litigation against public authorities, as prospective claimants litigate in haste lest they miss their opportunity altogether (see Burkett [53], where Lord Steyn quotes Professor Craig to this effect).
Yes, doing away with promptitude would make matters less flexible. But it would also make them more certain for all the parties involved—prospective claimant and prospective defendant alike. Everyone would know their limits. Is this such an undesirable outcome? We shall see whether the Court of Appeal (Pill, Rix and Sullivan LJJ) in Macrae, heard on 9 March 2012, agree.