Practice and procedure – Issue of proceedings – Time limits – Jurisdiction – Claimant applying for planning permission for residential development – Defendant applying for order that court had no jurisdiction to determine claim – Whether claim form validly served in time – Whether claimant entitled to extension of time to serve claim form and relief from sanctions – Claimant’s application dismissed – Defendant’s application granted
The second defendant local authority refused the claimant’s application for outline planning permission for a development of up to 197 dwellings on land in Warfield, Bracknell. An inspector appointed by the first defendant secretary of state dismissed the claimant’s appeal.
The claimant sought permission to apply for planning statutory review of that decision under section 288 of the Town and Country Planning Act 1990. It was common ground that, as the decision was dated 22 September 2022, the final day for filing and serving the claim was 3 November 2022. On 2 November 2022, the claimant attempted to open a claim on CE-file but without success.
The first defendant applied for an order under CPR Part 11, that the court had no jurisdiction to determine the claim and setting the claim form aside, because it was not filed or served within the prescribed period. The claim form was not filed in time because it could now only be filed electronically.
Alternatively, although it was deposited in the Administrative Court Office (ACO) drop box in the Royal Courts of Justice on 3 November, it was not received until it was collected on 4 November. The delivery to the drop box did not constitute filing as it was not the ACO.
The claimant applied for a declaration that the claim was filed and served in time. Alternatively, it sought an extension of time to serve the claim form under CPR 3.1(2)(a), or relief from sanctions under CPR 3.10.
Held: The claimant’s application was dismissed. The defendant’s application was granted.
(1) The time for filing claims under section 288 of the 1990 Act started to run after the date of the decision letter, not the day on which it was received by the applicant. It expired at midnight on the forty-second day. It continued to run over a weekend or Bank Holiday but if the last day fell on a weekend or holiday, time was extended to the next day on which the ACO was open. Apart from that, the statutory time limit could not be extended save in exceptional circumstances: Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54;[2019] PLSCS 24 considered.
Paragraph 7.2.1 of the Administrative Court Guide (2022 ed) set out the well-established principle that the date of filing, for the purposes of time limits, was the date when the claimant filed the claim form at the ACO, not the date when the claim was issued by the court, which might be several days later.
When a time was prescribed by statute for doing any act, and it could only be done if the ACO was open on the day when the time expired, then, if it turned out in any particular case that the day was a Sunday or other dies non, the time was extended until the next day on which the ACO was open: Kaur v Russell & Sons Ltd [1973] 1 QB 336 applied.
(2) The Kaur principle would only have the effect, in practical terms, of lengthening the period by one or two days (if the six-week period ends on a weekend) or possibly three or four days (if it ends on the first day of a period when there are two Bank Holidays and a weekend). It had to be adhered to strictly as there was no provision for any discretionary extension of time.
Parliament had provided a strict time limit of six weeks for an application under section 288. Subsection (4B) did not, in its own terms, admit any exception to the absolute time limit it laid down. As a matter of straightforward statutory interpretation, the time limit was precise, unambiguous and unqualified. The statutory language was mandatory.
The Kaur principle was not conceived as a principle to guide the exercise of judicial discretion in the various circumstances in which a litigant might fail to begin proceedings within a statutory limitation period. It was a narrow principle, founded on the certainty and predictability of the calendar, and the particular days on which court offices would not be open for business. Inherent in it was that all parties to potential litigation would know, or easily be able to find out, when court offices would be open, when and where a relevant claim could be issued, and whether the limitation period would be extended so that it did not end on a “dies non”. It conceded nothing to uncertainty and inconsistency.
(3) The claim form in this case was not filed when it was deposited in the drop box which was not “the court office” within CPR 2.3(1). It was essentially a dedicated post-box and the mere fact of posting the claim form there was not sufficient to constitute the act of filing, just as posting the claim form at the Post Office would not amount to filing. It could only be filed once it was taken from the drop box to the ACO and approved for filing by a member of staff. Action by the court was required to approve the filing of the claim: Barnes v St Helens Metropolitan Borough Council [2007] 1 WLR 879 distinguished.
When documents were deposited in the drop box, there was no procedure for recording the name of the case and the time and date on which delivery took place. It would be unsatisfactory for such a significant procedural step as filing to take effect without any record of it. Therefore, the claim was filed out of time.
(4) Furthermore, the claimant did not act promptly in applying for an extension of time. Therefore, the claim form was not validly served in time: R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 considered.
Accordingly, the defendant’s application for an order under CPR Part 11 was granted and it was declared that the court had no jurisdiction to determine the claim and the claim form was set aside. It followed that permission to apply for planning statutory review had to be refused together with the claimant’s application for an extension of time to serve the claim form under CPR 3.1(2)(a) and its application for relief from sanctions under CPR 3.10.
Richard Turney (instructed by Direct Access) appeared for the claimant; Michael Fry (instructed by the Government Legal Department) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Home Farm Land Ltd v Secretary of State for Levelling Up, Housing and Communities and another
