Delay in applying for Judicial Review

January 31st, 2019 by James Goudie KC

In Maharaj v National Energy Corporation of Trinidad and Tobago (2019) UKPC 5 the Privy Council considered provisions resembling those in England and Wales relating to delay in making an application for leave to apply for judicial review, and, in particular, the precise significance of the presence, or absence, of prejudice to the rights of any person, or detriment to good administration, resulting from the grant of leave, or of any relief.  Lord Lloyd-Jones said:-

“26. The classic exposition of the approach to delay in applications for judicial review in England and Wales is to be found in the speech of Lord Goff of Chieveley in Caswell. … even if there is good reason for extending time, the court may still refuse leave on grounds of prejudice or detriment. Caswell concerned the inter-relationship of section 31 of the Supreme Court Act 1981 and RSC Order 53, rule 4.2 Lord Goff agreed with the reasoning and conclusion of Ackner LJ in Jackson that even though a court may be satisfied that there was good reason for the failure to apply promptly or within three months, the delay, viewed objectively, remains “undue delay” and the court therefore retains a discretion to refuse to grant leave or the relief sought on the substantive application on the grounds of delay if it considers that it would be likely to cause substantial hardship or prejudice or would be detrimental to good administration. … The court, however, had the power to grant leave despite the fact that the application was late if it considered that there was good reason to exercise that power. …

  1. notwithstanding the existence of good reason to exercise the power to grant an extension of time, leave or substantive relief may nevertheless be refused on the ground that it would be likely to cause prejudice or detriment. … Lord Goff is saying that even where there would otherwise be good reason to extend time, the existence of prejudice or detriment may result in the refusal of an extension of time. He is not saying that prejudice and detriment are irrelevant to the grant of an extension of time.
  2. … there is nothing in the reasoning of Lord Goff’s speech to support the view that a court must first address the issue of pure delay as a threshold question, excluding considerations of the presence or absence of prejudice or of detriment. In particular, Caswell was not a case in which a court refused to take account of a lack of prejudice or detriment when considering whether there had been undue delay or whether there were good grounds for extending time.
  3. On the contrary, there is authority in England and Wales indicating that these provisions should not be applied in a technical manner. …”

“36. More generally, and quite independently of the particular provisions and scheme of the legislation in Trinidad and Tobago, as a matter of principle, considerations of prejudice to others and detriment to good administration may, depending on the circumstances, be relevant to the determination of both whether there has been a lack of promptitude and, if so, whether there is good reason to extend time.

  1. The obligation on an applicant is to bring proceedings promptly and in any event within three months of the grounds arising. The presence or absence of prejudice or detriment is likely to be a key consideration in determining whether an application has been made promptly or with undue or unreasonable delay. …

Indeed, when considering whether an application is sufficiently prompt, the presence or absence of prejudice or detriment is likely to be the predominant consideration. The obligation to issue proceedings promptly will often take on a concrete meaning in a particular case by reference to the prejudice or detriment that would be likely to be caused by delay.

  1. … In the same way, questions of prejudice or detriment will often be highly relevant when determining whether to grant an extension of time to apply for judicial review. Here it is important to emphasise that the statutory test is not one of good reason for delay but the broader test of good reason for extending time. This will be likely to bring in many considerations beyond those relevant to an objectively good reason for the delay, including the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest. ….
  2. If prejudice and detriment are to be excluded from the assessment of lack of promptitude or whether a good reason exists for extending time, the law will not operate in an even-handed way. It is not controversial in these proceedings that, even where there is considered to be a good reason to extend time, leave may nevertheless be refused on grounds of prejudice or detriment. By contrast, if, without taking account of the absence of prejudice or detriment, it is concluded that there is no good reason for extending time, leave will be refused and their absence can never operate to the benefit of a claimant.”

“41. The allocation of issues of delay and extension of time, on the one hand, and prejudice and detriment to good administration on the other, to discrete hearings may have lent some support to the notion that extension of time is a threshold issue and that issues of prejudice or detriment do not arise at that stage. However, for the reasons given at paras 27 and 28, above, Caswell provides no justification for the claimed insulation of these issues from each other. Furthermore, civil procedure has developed considerably in England and Wales since 1990. Nowadays the pre-action letter of response allows a respondent or interested party to draw attention to the possibility of any prejudice or detriment. Compliance with pre-action protocols and the Civil Procedure Rules should ensure that in most cases issues of prejudice or detriment to good administration are identified at the outset. Where such issues are raised by a defendant in the context of delay, it will be open to the judge to adjourn the question of leave to an inter partes hearing or to order “a rolled-up hearing”, at which leave will be considered, followed immediately by the substantive application, if leave is granted.   … In either case, full consideration can be given to issues of extension of time, prejudice and detriment, on the basis of evidence filed by the parties. In any event, even if leave is granted without full consideration of issues of prejudice and detriment resulting from delay, these may still be a bar to relief at the substantive hearing. …”

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