Judicial review time limit and disclosure

April 10th, 2017

Principles relating to delay in judicial review proceedings have been restated as follows by Lewis J in R (Sustainable Development Capital LLP) v SoS for Business, Energy and Industrial Strategy (2017) EWHC 771 (Admin).  The case concerned the proposed sale of a publicly-owned asset. The claimant sought to challenge the defendant’s award of preferred bidder status and a period of exclusivity to another party.

The first issue was whether the claim was brought within the time prescribed by CPR 54.5.  Lewis J said (paragraphs 31, 32 and 35):-

(1) A claim for judicial review must be brought promptly;

(2) It must be brought in any event not later than 3 months after the date when the grounds of challenge for first making the claim arose;

(3) The test is one of promptness;

(4) Prompt action is necessary so that (i) the parties, and (ii) the public generally –

(a) know whether they are able to proceed on the basis that a decision is (i) valid and (ii) can be relied on, and

(b) can

(i) plan and

(ii) make business decisions accordingly;

(5) In the context of a challenge to a decision affecting the sale of a significant, publicly-owned asset,

(i) the wider public interest, as well as

(ii) the interests of the bidders, provide a real need to ensure that any challenge which may affect the sale process is resolved quickly;

(6) Time begins to run on the date when the grounds of challenge first arose;

(7) That is usually the date on which the decision under challenge was taken;

(8) The time does not begin to run from the date when the claimant knew of the grounds of challenge;

(9) The date when the claimant knew (or ought to have known) sufficient to enable a challenge to be brought is likely to be highly material to the question of whether –

(a) the claim was brought promptly, or

(b) an extension of time for bringing the claim should be granted;

(10)  The use of the pre-action protocol procedure does not affect the time limits for bringing the claim.

Lewis J further observed (paragraph 71) that:-

(1) As the claimant did not bring the claim promptly, there was also undue delay, for the purposes of Section 31(6) of the Senior Courts Act 1981;

(2) In those circumstances, the Court could refuse to grant a remedy if it considered that the granting of the relief sought would be likely to

(i) cause “substantial hardship” to, or

(ii) “substantially prejudice” the rights of, any person, or

(iii) would be “detrimental to good administration”;

(3) Furthermore, the grant of a remedy is discretionary, and, in appropriate circumstances, a remedy may be refused even if a claim has been brought in time.

Detriment to good administration was found (paragraph 74).  A process had been conducted to identify a buyer for a publicly owned asset.  Terms had been agreed. It would be contrary to good administration to prejudice the sale and the benefit from it.
Also (paragraph 75) the rights or interests of third parties would be prejudiced.  The preferred bidder had spent considerable time and resources.

Lewis J added (paragraphs 78-80) with respect to disclosure and inspection:-

(1) A Court will order a specific disclosure of a document in a claim for judicial review if disclosure is “necessary for fairly and justly disposing of the claim”;

(2) A reference to a document in a witness statement filed in support of a claim for judicial review made under CPR 54 is not, having regard to paragraph 12.1 of Practice Direction 54A, to be treated as disclosing the document for the purposes of CPR 31.2: “A party discloses a document by stating that the document exists or has existed”;

(3) The specific provisions of Practice Direction 54A contemplate that disclosure will be required only if the Court so orders;

(4) A defendant public body may voluntarily provide copies of documents;

(5) It is encouraged to do so;

(6) It may be a method of discharging its duty of candour to ensure that a Court is informed of the relevant facts underlying and the reasons for a decision;

(7) However, until an  Order is made a defendant is not required to disclose documents;

(8) In those circumstances, a reference to a document filed in the course of judicial review would not amount to disclosure and would not give a claimant a right to inspect the document pursuant to CPR 31.3.

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