Case Law >> When timing still matters

Experts from Lexis PSL discuss the recent Berky judgement on the timing of making a judicial review claim and what this means for developers

In R (Berky) v Newport City Council [2012] EWCA Civ 378, the Court of Appeal held that a claim for judicial review was not brought “promptly”, even though it was within the three-month time limit for making a claim.

The claimant, a local resident, applied to challenge the granting of planning permission for the construction of a new Morrisons supermarket by way of judicial review.

The claim form was issued on the last day of the three-month period in which forms seeking such a review had to be filed, as specified by rule 54.5(1)(a) of the Civil Procedure Rules. Also, no letter of complaint against the planning decision had preceded the claim form.

There was a delay in bringing proceedings, so that by the time the application to the High Court to bring a judicial review was heard the supermarket was already open.

The Court of Appeal dismissed the claimant’s appeal against the High Court’s refusal to apply for judicial review.

Although the judges dissented on the issue of timing, the majority held that the claimant’s application had not been brought promptly.

The judges said there had been no convincing explanation for the failure to commence proceedings, or even for not having sent a letter until the very end of the three-month period. They also noted that the claimant would have been aware of work commencing on the site.

The court distinguished the case from Uniplex v NHS Business Services Authority, [2010] 2 CMLR 1255.

In that case, the European Court of Justice held that the requirement to bring proceedings “promptly” was contrary to the EU legal principles of certainty and effectiveness, as it would render the limitation period discretionary.

The judges in Berky considered that the power to not allow a review arose whenever there was a failure to commence proceedings promptly. As a result, the review could be refused on the grounds of delay if the court thought that appropriate.

In light of this ruling, applicants for judicial review should be aware that they may be held to account for any delay in bringing a claim.

However, the judgment of Uniplex still stands. Therefore, developers are advised to adopt a cautious approach and continue to regard the full three months as the challenge period.