The Court of Appeal in R (on the application of Berky) v Newport City Council [2012] EWCA Civ 378; [2012] PLSCS 79 (see PP 2012/44) was also faced with an ancillary issue on timing. In that case, the appellant had sought to challenge the grant of planning permission by the first respondent for a mixed development including a food store. That planning permission had been granted on 26 January 2011. The appellant lodged his claim on 26 April 2011, which was the day following a bank holiday.
CPR 54.5(1) provides that a claim for judicial review must be brought promptly, and in any event not later than three months after the grounds to make the claim first arose. (What is quite clear, as a result of the decision of the House of Lords in R (on the application of Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23; [2002] 2 PLR 90, is that in a case such as this time is calculated with reference to the date of the grant of the planning permission, and not the earlier resolution.) The judge at first instance concluded, inter alia, that the claim had not been brought within the three-month period.
The Court of Appeal disagreed, holding that the natural meaning of the expression “three months after the grounds to make the claim first arose” was that the three month-period begins to run on the day after the planning permission was granted. That period therefore expired on 26 April 2011.
However, the court also referred to the decision in Pritam Kaur v Russell and Sons [1973] QB 336, which implicitly recognises that issuing a claim form is a bilateral act requiring the court to be open. There it was held that if the court is closed on the final day of a limitation period, proceedings are deemed to be in time if they are issued on the next day when the court is open for business. In the present case, the bank holiday on 25 April 2011 had to be ignored. This was further justification for holding that the claim had been brought within the three-month period.
It remains something of a mystery why the claim in this case was made during the final hours available. Perhaps a clue is to be found in the fact that it was not preceded by any form of letter before action.
John Martin is a freelance writer.
