An application for permission to proceed with a claim for judicial review must be made “promptly” and “in any event not later than three months from the date when the grounds for the application first arose”. This is the stated effect of CPR 54.5(1). The requirements have to date been regarded as separate and independent, with the result that, in a number of cases, the court has concluded that the application was not made “promptly” despite being made within the three-month period. “Promptness” clearly has to be looked at by reference to all the circumstances of the case.
However, Uniplex (UK) Ltd v NHS Business Services Authority C-406/08 [2010] PTSR 1377 – a decision relating to the Public Contracts Regulations 2006, which transcribed the Procurement Directive 89/665/EEC into domestic law – held that the test of whether a challenge is made “promptly” was not compatible with the requirement for certainty in article 1(1) of that directive.
In R (on the application of Pampisford Estate Farms Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 131 (Admin), the High Court held that, as a matter of law, the decision in Uniplex could not on its own overturn the statutory basis of CPR 54.5. Moreover, that case was not concerned with a situation in which a lack of promptness could have a significant adverse effect on numerous other parties.
However, a different view has been taken in R (on the application of Buglife – The Invertebrate Conservation Trust) v Medway Council [2011] EWHC 746 (Admin); [2011] PLSCS 148. There, HH Judge Thornton QC, in a decision that he certified as purporting to establish a new principle concerning time limits for starting judicial review proceedings, held that Uniplex applied general and core principles of Community law that apply to all directives. The requirement of certainty, and the application of that requirement to limitation periods imposed on those seeking to enforce their rights arising under the directive in a national court, has general application to such enforcement proceedings arising out of any directive. (In Buglife, as in Pampisford Estate Farms, the directive in question was the EIA Directive 85/337/EEC.)
Judge Thornton was clearly stating that, in those circumstances, the requirement for promptness in CPR 54.5(1) is not now enforceable in the English courts. However, where does that leave those advising potential claimants?
John Martin is a freelance writer
