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Is the clock ticking? The importance of time limits in judicial review

In judicial review proceedings, CPR 54.5 requires that the claim form must be filed not later than 3 months after the grounds to make the claim…

In judicial review proceedings, CPR 54.5 requires that the claim form must be filed promptly, and in any event not later than three months after the grounds to make the claim first arose, unless the Court exercises its discretion to extend time.  But when does time start running?

Local authorities often take their decisions slowly and in bite-size chunks.  That is good governance.  Big, controversial issues rarely emerge fully grown and ripe for a single authoritative decision.  Elected members should steer policy development, public debate is important, and there is usually cause for concern if a big bang decision is preceded by discussions entirely behind closed doors.  Plus some statutory procedures involve a series of determinations.  It can make it difficult, though, to work out when the opportunity to challenge the decision arises, and when it is lost.

The Court of Appeal tussled with this in R on the application of Nash v Barnet London Borough Council [2013] EWCA Civ 1004.  Before we look at that decision, let us review, as the Court did, the earlier judgments bearing on the point.  It is instructive to look at them in sequence.

In R. v Secretary of State for Trade and Industry ex parte Greenpeace Ltd [1998] Env LR 415 the Secretary of State for Trade and Industry awarded licences under the Petroleum (Production) Act 1934 and the Petroleum (Production) Areas Regulations for oil exploration and extraction in an offshore site containing a coral that Greenpeace believed was protected under the Habitats Directive 92/43/EEC.   They argued that the site was covered by the Directive, that it should therefore have been designated a Special Area of Conservation (SAC), that the licensing process should in consequence have included an assessment of the effect on the coral, and that the Regulations had failed to give effect to the Directive.  The Secretary of State maintained that the challenge should have been brought when the Regulations came into force, when the list of SACs was published, or when the opportunity to bid for licences was publicised, or advertised.  Laws J held that it was the third of these dates, because at that time it was clear that the Government did not consider that the Directive applied to this site.  Greenpeace’s application was out of time and was refused.

In Jobsin.Co.Uk Plc (trading as Internet Recruitment Solutions) v Department of Health [2002] 1 CMLR 44, the DoH invited proposals for the development and management of an online recruitment service for the NHS.  The Claimant submitted a tender, but was not shortlisted.  It alleged that the DoH was in breach of the Public Procurement Regulations 1993, because it had treated the subject matter as “personnel placement and supply services” and not “computer and related services”.  The former were in Part B of the Regulations, and the latter in Part A.  Part A services had to follow a different, more exacting, tendering process.  In particular, the DoH would have had to have specified the criteria against which tenders would be evaluated, which it did not.  The claim was made under the Regulations, which provided that “any breach of the duty [to comply with the Regulations] shall be actionable by any services provider who, in consequence, suffers, or risks suffering, loss or damage” and required that proceedings should be “brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought”.  The Court of Appeal decided that these were indeed Part A services.  The DoH argued, though, that the claim was out of time.  There were two crucial dates:  the date on which the tender briefing document was issued, and the date on which the Claimant was told that it had not been shortlisted.  The Court of Appeal held that grounds arose at the first date.  At that point it should have been clear that the service was being treated as within Part B, because no evaluation criteria were given.  The proceedings were out of time. 

The test seems to be when, on the basis of information available to the claimant, should the claimant have been aware that the defendant had acted unlawfully.  So far, so good.

But in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593, the House of Lords was much more helpful to the Claimant.  In this case, the Council took a preliminary decision to authorise an officer to grant planning permission for a huge development scheme at Imperial Wharf, subject to the completion of a section 106 agreement securing planning gain, and the officer granted permission later when the agreement had been completed.  This is the usual approach in such matters, and those involved used to regard the initial resolution as the turning point, and the completion of the section 106 agreement as no more than an administrative condition subsequent.  However the House of Lords held that, although the Claimant could have challenged the first decision, had she been in time, fresh grounds arose when planning permission was granted.  They said that the first resolution could have been superseded because circumstances changed, a condition could not be met, negotiations on the agreement broke down, the decision required review because it was flawed, or the Council simply changed its mind.  Lord Steyn said there were three public policy issues.  First, time limits depriving citizens of a right of challenge should be straightforward and easy to understand.  Second, simplicity and certainty should be preferred to complexity and uncertainty.  Third, he explained how burdensome it was for a local resident to mount a judicial review.  He said “These considerations reinforce the view that it is unreasonable to require an applicant to apply for judicial review when the resolution may never take effect. They further reinforce the view that it is unfair to subject a judicial review applicant to the uncertainty of a retrospective decision by a judge as to the date of the triggering of the time limit under the rules of court.” As a House of Lords decision, this became the leading case.

Younger Homes (Northern) Ltd v First Secretary of State [2003] EWHC 3058 (Admin) was another planning case.  A group of developers sought permission for a retail development, with a swimming pool, on an old mill site in Brighouse, Calderdale.  Permission was granted by the Secretary of State, following a call-in, subject to a section 106 agreement, but the consortium had disintegrated, one of the landowners had sold its land to the Claimant, and the Claimant wanted to reopen the planning decision, believing that otherwise its interest would be compulsorily acquired on the back of the permission.  It argued that the SoS had wrongly adopted the Council’s screening opinion, that an environmental impact assessment was unnecessary, that that opinion was unlawful, and that the SoS should have himself made a screening direction.  At first instance, Ouseley J rejected these arguments, and his decision was upheld by the Court of Appeal.  He also dealt, obiter, with another argument from the SoS.  The SoS maintained that the claim should have been brought when the screening opinion was given.  He argued that that decision was capable of judicial review, and that Burkett was different.  Ouseley J was not persuaded.  He said “there was no certainty that the rights of those aggrieved would be affected until the grant of planning permission by the local authority in Burkett, or by the First Secretary of State here.”

Smith v North East Derbyshire Primary Care Trust [2006] EWHC 1338 (Admin) was a challenge to the decision of the PCT to award a contract for GP services.  Mr Smith was resident in the area, and a Parish Councillor.  He wanted better local provision, and claimed that there had been insufficient or no consultation, contrary to section 11 of the Health and Social Care Act 2001.  Collins J agreed, but declined in the circumstances to grant relief.  In reaching that conclusion he said “The claim was lodged on 3 March 2006. The decision under attack is that announced on 23 December 2005. The claimant was unaware of the decision to tender, which took place on 10 November 2005, until Christmas time. In any event, the decision of the House of Lords in R v Hammersmith & Fulham LBC ex p Burkett [2002] 1 W.L.R. 1593 suggests that time would not begin to run until the decision was made to contract with [the provider].”

Back to planning, and screening opinions, always a fertile source of tricky precedents.  R (on the application of Catt) v Brighton and Hove City Council [2007] EWCA Civ 298 was about a proposed extension to Brighton and Hove Albion Football Club.  Mr Catt, who lived near the ground, challenged the Council’s screening opinion that the development would not have significant effects on the environment, and that an environmental impact assessment was not required.  The Court of Appeal rejected the argument.  The City Council also took the delay point.  Pill LJ approved Ouseley J’s approach in Younger Homes.  He said “To deprive a citizen of the right to challenge a planning permission by way of judicial review would be a major and a retrograde step. The screening opinion certainly has a formality and status in the statutory planning scheme. It may itself be challenged and that may be the appropriate course in some situations. However, the opportunity to challenge does not affect the right to challenge by judicial review a subsequent planning decision. The opinion does not create, or inevitably lead, to a planning permission and the right to challenge a subsequent planning permission relating to the same proposed development is not, in my judgment, defeated by the passage of time between the screening opinion and the planning permission.”

So now a second decision, which flows from the faulty decision but is not an inevitable or certain consequence of it, gives rise to fresh grounds and time starts to run again.

Then came the “LAML case”, R. (Risk Management Partners Ltd) v Brent London Borough Council [2009] EWCA Civ 490, in which Weightmans acted for a number of London Borough Councils.  The Councils established an insurance mutual, LAML, a wholly owned company which provided insurance cover to them on a cost and risk sharing basis.  Brent was a participant, but conducted a parallel procurement exercise before abandoning it and deciding to join LAML and insure with it.  RMP had submitted a tender, and sought to challenge Brent’s decision on two grounds.  The first was a claim under the Public Contract Regulations 2006, that the contractual arrangements with LAML were subject to the Regulations, so that formal procurement was required.  RMP were successful at first instance and in the Court of Appeal, but those decisions were overturned in the House of Lords, who decided that the Teckal principle took the arrangements outside the Regulations.  The second was that the arrangements were outside the authorities’ powers.  This succeeded in the Court of Appeal but was overtaken by new specific legislation, and then by the Localism Act 2011 general power of competence.  In the Court of Appeal, Brent argued that RMP’s proceedings were out of time.  Brent had taken a Cabinet decision to participate in LAML, then invited RMP and others to tender, then became members of LAML and finally placed insurance with LAML and immediately advised RMP that the procurement process was to be abandoned.  The challenges were brought just within three months of that communication, and long after the first decision or initial participation in the mutual.  Brent said that they were too late to challenge the decision.  The Court of Appeal, said that they were not, because their entitlement to damages for breach of the Regulations did not arise until they placed insurance, and that in any event the Court would have exercised its discretion to extend time.   In argument, RMP relied on Burkett, and Brent and the London Boroughs tried to deconstruct Brent’s decision making process in terms of conditionality, but the Court of Appeal judgements focussed on the remedy RMP was seeking in the procurement challenge, the point at which they had suffered loss, and the difference between a claim for damages and a claim seeking to prevent an anticipated breach of the Regulations.  They then read the outcome across to the judicial review proceedings.  Other than establishing that Burkett is not limited to planning, it is hard to know what to make of this.

In Allan Rutherford LLP v Legal Services Commission [2010] EWHC 3068 (Admin), a firm of solicitors challenged the LSC’s decision not to award them a legal aid contract.  The attack involved a number of detailed criticisms of the procurement process.  It was unsuccessful.  In addition, although the Claimant had been aware of the facts, it had chosen to “wait and see” if its application would be successful.  You cannot do this – see Jobsin – and the permission was refused on the ground of delay.

Finally, there was R. on the application of Unison v NHS Wiltshire Primary Care Trust and nine others [2012] EWHC 624 (Admin).  Unison challenged the decision of ten PCTs to outsource Family Care Services, alleging breaches of the Public Contracts Regulations 2006.  The PCTs had treated the outsourcing as covered by an earlier framework agreement, and Unison said that they were wrong to do so, so the core challenge was that procurement under the Regulations had simply not taken place.  This judgement was just on two preliminary issues: standing and delay.  On delay, Nigel Giffen QC (who had represented Brent in the LAML case, unsuccessfully arguing on that occasion that the claim was out of time) said for Unison that the challenge was in time because it was brought shortly after the point at which the PCTs became contractually committed to outsourcing the work.   Eady J said “Mr Giffin submits that, in a “no procurement” case, the only breach to be contemplated is the actual award of a contract without a prior procurement. No breach up to that point would count. I believe this proposition needs to be qualified to the extent that a positive decision to go with a particular contracting party will also count as a breach (unless, of course, it is genuinely conditional).”  The challenges were, for the most part, out of time.  They also failed on standing.  But plainly the Burkett principle did not mean that, in these circumstances at least, the decision to award the contracts gave rise to a new ground and started time running again.

This is a curious tale.  Having worked your way through the case law, including a House of Lords decision, you would hope to find some general principles to determine the answer to the question “when does time start running?”  Instead, the cases delve into two intricate statutory procedures, the grant of planning permission and public procurement, mix them together, and occasionally overlay quite different questions about whether, as a matter of discretion, time should be extended or relief refused.  On one level, it looks as though the courts were determinedly performing their role as gatekeepers, until the House of Lords had a crisis of conscience in Burkett, and have been working out whether to follow or ignore Burkett ever since, with precisely the opposite outcome to what Lord Steyn had in mind.

Then came “One Barnet”.   The case of R (on the application of Nash) v Barnet London Borough Council is about a £320 million outsourcing deal between Barnet and Capita, a key element of the Council’s ambitious and controversial “One Barnet” programme, and a second £290 million contract with Capita or EC Harris.   At first instance ([2013] EWHC 1067 (Admin)), Underhill J held that there had been insufficient consultation with representatives of local tax payers, of persons who use or are likely to use the services in question, and of persons appearing to the authority to have an interest in the area, to satisfy section 3 of the Local Government Act 1999, which required consultation on decisions on how to satisfy the general duty to secure best value.  Whether this mattered would turn on whether the proceedings had been brought in time, or whether, alternatively, time should be extended, or relief refused under section 31 (6) of the Senior Courts Act 1981 because unpicking “One Barnet” would be likely to cause substantial hardship to, or substantially prejudice the rights of, the contractors, or would be detrimental to good administration.   Underhill J thought the proceedings were out of time.  Barnet appealed to the Court of Appeal ([2013] EWCA Civ 1004).

This is the chronology.  In December 2008, Barnet’s Cabinet considered a report on the Council’s “future shape”.  It decided that the Council’s future role would be limited to direct provision of only those services that it could not externalise, and that value for money was paramount.  Further reports were considered in July and October 2009, and a special unit was established to consider three options:  the Council as the main delivery vehicle, co-ownership and a joint venture or outsourcing.  In November 2010, a Cabinet report recommended that a private sector partnership be sought for a large number of functions.  The Cabinet approved the report and authorised an officer to commence the procurement process for a bundle of “Development and Regulatory Services” or DRS.  Formal procurement started in March 2011. Also in March 2011, a Cabinet Committee received a report about another bundle of services, the “New Support and Customer Services Organisation” or NSCSO.  An officer was authorised to produce a business case and initiate procurement for a number of services.  Procurement started in June 2011, and in the same month the Committee approved the NSCSO business case.  Procurement was by competitive dialogue.  Shortlists of tenderers were approved in December 2011 (DRS) and February 2012 (NSCSO).  Capita became the preferred NSCSO bidder, and in December 2012 Cabinet agreed to accept its final tender, with contract completion and so on delegated to an officer.  All meetings had been open to the public, and minutes had been published.  By January 2013, the DRS bidders had been whittled down to Capita and EC Harris, and a decision was immanent.  Mrs Nash, a resident and service user, began judicial review proceedings on the 10 January. 

Nigel Giffen QC (for it was he) represented Mrs Nash at first instance and in the Court of Appeal.  First, he argued that everything that had occurred up to December 2012 had been a “journey of discovery”, that no binding decisions were taken until December, and that the entire project could have been abandoned at any time.  Davis LJ gave the leading judgment in the Court of Appeal.  In summary, he disagreed with Mr Giffen, and agreed with Underhill J.  The question was not “when was the decision final, or irrevocable?”  The question was “when was the decision taken in respect of which the statutory duty to consult arose?”  The section 3 duty arose when the Council decided how to fulfil its best value duty.  The challenge was to the decision to outsource, not to the choice of provider.  Mr Giffen had, in part, conceded as much.  The relevant decisions were those of November 2010 and March 2011.  The challenge was well out of time.

But what of Burkett, and the cases that followed it?  House of Lords decisions can be so inconvenient.  Did Burkett mean that, where a decision-making process involves a series of decisions, a claimant may challenge a later decision even if the defect lay further back down the chain, and could have been challenged at the time?  Davis LJ thought it should be distinguished.  This is the classic gambit, of course.  The Hammersmith and Fulham Planning and Traffic Management Committee resolution to grant planning permission was “provisional”. The Barnet decisions to initiate procurement were not.

The other pro-Burkett cases were easily dealt with.  Younger Homes and Catt were similar to Burkett.  Screening opinions did not inevitably lead to the grant of planning permission.  The Barnet decisions did inevitably lead to procurement.  In the LAML case “there were rather special facts”.  In Smith, “it was not clear if the point was fully argued, and the comments of Colins J in this case were not only by reference to s.31 (6) [of the Senior Courts Act 1981] but were both obiter and tentative”.  And the other cases, particularly Jobsin, went the other way.  So, said Davis LJ, “overall the relevant authorities … are against Mr Giffin’s argument”.

The outcome is hardly surprising.  Barnet had clearly signalled their intentions long before the December 2012 decision, and if anyone had thought that they ought to have been consulted, or that due regard had not been given to equality duties, or whatever, they should have challenged the decisions to procure partners, before a vast amount of public and private sector time and money was spent on the two projects.  The section 3 consultation duty clearly bites at an early stage.

As is so often the case with public law, the problem is the planning cases.  We suspect that if, at the time, anyone had told Hammersmith and Fulham that their decision to authorise the grant of permission was “provisional”, they would have been quite surprised.  We have no idea what “provisional” means.  Plainly a decision that is expressed as provisional, and subject to later review, like a budget decision, does not have to be challenged.  Indeed, any challenge is likely to fail.  But if there is to be a series of decisions, each one is a link in the chain, and all of them are likely to have some legal effect and some consequences.  If the time and money spent by Barnet, Capita and EC Harris were important, what about the time and money spent by Calderdale and the Brighouse developers?  Why should someone who spots a flaw in a procurement process be obliged to challenge it straight away, when someone who thinks that a planning determination (like a screening option) is unlawful is entitled to wait to see if the development fails for other reasons?   The real difference is perhaps that most procurement challenges are made by commercial competitors for commercial reasons, whilst many planning challenges are made (nominally at least) by impecunious local residents, but that cannot be the criterion.

Anyway, it seems that we have a kind of answer.  First, decide which decision the grounds of challenge attack.  Then have a stab at working out whether that decision was “provisional” in any real sense (noting that in planning cases any determination or resolution preceding the grant of permission is likely to have been provisional).  If it was not, and the decision was taken more than three months ago, or the claim has not been made promptly, it is out of time, unless there are good reasons for the Court to extend time.  And challenges under the procurement regulations are the same, but different, depending on the context.  That seems to be the best we can do at the moment.  We suspect that Lord Steyn would be disappointed.