Applications for Judicial Review are subject to different time restraints to conventional claims. Previously, an Application for Judicial Review must be brought “promptly”, and in any event, within three months of the “decision” that is to be reviewed.
But what exactly does this mean in practice? How flexible are these three months, and when do they run from?
It is the general consensus that the period of three months runs from the relevant decision being made aware to the prospective Claimant. This is confirmed in CPR Rule 54.5, which also states that an application must be brought promptly.
Three months from when?
Rule 54.5(1)b states that that the application must be brought “not later than 3 months after the grounds to make the claim first arose”. On initial reading this could prove problematic – if a decision is made but not transmitted to those affected by such a decision, then it could be the case that prospective applicants are time-barred from bringing a claim before they are even aware of the decision.
The White Book, which offers substantial guidance on the Civil Procedure Rules and Court Procedures, sheds some clarity on this:
“Time runs from the date when the grounds first arose not on the date when the claimant learned of the decision or from the date when the claimant considered that they had adequate information to bring the claim.”
This guidance is welcomed yet still not definitive. It would be the logical approach to take, such that would be applicants are not prejudiced by administrative delays. It is often the case that regulatory decisions can take weeks to be recorded and transmitted to those effected – and given the three months requirement, maximising the time available is essential.
This was confirmed in R. (on the application of Crompton) v South Yorkshire Police and Crime Commissioner [2017] EWHC 1349 (Admin) – albeit an official transmission is not required for the purposes of “learned of the decision”.
It may be the case that an informal notice may be given ahead of an official notice (as in Crompton), and therefore the decision date will be that of when the Claimant learned of the decision made.
Promptness?
Simply bringing the Claim within the three months from the date of the decision may not necessarily be sufficient for compliance with Rule 54.5 – the bringing of the application promptly is arguably a more determining factor. Indeed, if a prospective Claimant has sat on the information for a significant period of time, and then made the application on the penultimate day, then they may be met with the frustration of their application being rejected for a lack of promptness.
Bearing in mind however, that Judicial Review Claims are typically seen as Claims of “last resort” (although, see In the matter of an application by Noeleen McAleenon for Judicial Review (AP)(Appellant)(Northern Ireland) [2024] UKSC 31), it would therefore be logical for the promptness requirement to be bypassed if the applicant has sought to avoid litigation in the three months after the decision was made.
Recent Developments
The recent case of Suez (R (Suez Recycling and Recovery UK Ltd) v Environment Agency [2023] EWHC 3012 (Admin)) could have possibly altered the decision “date” for the Environment Agency in lieu of relevant Appeal Processes. It may be apparent that, if a “decision” is subject to appeal, then it is not until the Appeal Process has been exhausted and a final decision has been given that a Judicial Review Claim is possible.
In the context of Suez, this could mean that Compliance Assessment Reports (CARs) are not judicially reviewable themselves, because they have an appeals process. This is a key consideration in the early stages of a Judicial Review Claim – and further guidance from the Courts would be welcomed.
The message for clients and for those affected by relevant decisions is to seek legal advice at the earliest available opportunity without delay, and to seek clarification where a decision is expected and anticipated. Judicial Review Claims which are brought out of time are inevitably doomed to fail.
At Dyne Solicitors we specialise in Environmental Disputes. We offer advice and representation for regulatory, commercial and property litigation – in the environmental and waste sectors. For more information, please contact Alex Sandland or Patrik Jones-Wright.