Practice and procedure – Issue of proceedings – Time limits – Service of claim form – Respondent failing to service claim form within statutory six-week period – Court extending time for service – Appellant appealing – Whether court having jurisdiction to extend time for service of claim form where underlying claim was for statutory review under section 288 of Town and Country Planning Act 1990 – Appeal allowed
The respondent sought to appeal against an enforcement notice and the refusal of planning permission for land off Micklewood Lane, Penkridge, in South Staffordshire. On 23 March 2023, an inspector appointed by the appellant secretary of state dismissed the respondent’s appeal.
The respondent brought a planning statutory review under section 288 of the Town and Country Planning Act 1990 and an appeal against the enforcement notice under section 289 (which was subsequently withdrawn). The time limit for service of the claim form in respect of the section 288 review was six weeks from the decision, and expired on 4 May 2023.
On 18 April 2023, the respondent filed with the court office a claim form, well within the time limit, but there was no mention of the statutory deadline. An email marked “high importance” was sent prior to the deadline but when it expired, the respondent’s solicitors failed to chase the court office.
On the respondent’s application to extend time for service, the judge concluded that the failure to serve a sealed claim form in time was due to delays by the court office, and outside the respondent’s control. She extended time for service up to and including the last date on which it was served upon the appellant (69 days after the deadline expired). She dismissed the appellant’s application for a declaration that the court had no jurisdiction to hear the claim: [2023] EWHC 2528 (Admin). The appellant appealed.
Held: The appeal was allowed.
(1) The correct test in determining an application for an extension of time in a section 288 statutory review was that set out in R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 which superseded the test in Corus UK Ltd v Erewash Borough Council [2006] EWCA Civ 1175; [2007] PLSCS 15; [2007] 1 P & CR 22.
Under CPR 7.6(3) a claimant might apply for an extension of time for serving a claim form if: (a) the court had failed to serve the claim form; or (b) the claimant had taken all reasonable steps to comply with rule 7.5 but had been unable to do so; and (c) in either case, the claimant had acted promptly in making the application. Whilst rule 7.6 did not apply directly to extensions of time for serving a judicial review claim form, the rule applied by analogy.
(2) In determining whether a claimant had taken all reasonable steps to serve the claim form within the relevant period where, as here, that period started to run before the claim form had been issued, the court had to consider all the steps taken up to the expiry of that period. Events after the deadline were strictly irrelevant to the issue of whether a claimant took all reasonable steps to serve within the period: Carnegie v Drury [2007] EWCA Civ 497 and Telford and Wrekin Council v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2439 considered.
In assessing whether the claimant applied promptly for an extension of time where, as here, the expiry of the period in which to serve the claim form was automatic and unconnected with the issue of any documents by the court, the period under consideration started with the date that the deadline expired, and ran to the making of the application for an extension of time.
(3) Amongst other things, taking all reasonable steps required: (i) alerting the court at the outset to when the documents had to be issued and why, explaining the expiry of any relevant deadline; (ii) chasing by email and telephone if there had been no sign of the documents after two or three working days; and (iii) as any deadline loomed, reiterating clearly, by personal attendance (if possible) at the court office, telephone or email, when precisely the relevant time period for service expired and the consequences of failure to issue in time: Telford and R (Merrills) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 1219 (Admin) considered.
In the present case, the respondent’s solicitors did none of those things. They failed to flag up the respective deadlines and exacerbated the problem by not making clear which documents related to which application.
(4) The judge failed to address the requirements of CPR 7.6(3)(b), to which she made no express reference. On a proper application of the relevant principles, the respondent failed to take all reasonable steps to serve within the six-week time limit. Therefore, the respondent failed to satisfy the test in 7.6(3)(b).
As CPR 7.6(2) made clear, the general rule was that a claimant had to make its application to extend time during the relevant period, not after it had expired. Once the deadline had expired, whilst an application could still be made under rule 7.6(3), the court would have wanted to know why the application had not been made in accordance with the general rule. This was a straightforward case, where every day after the expiry of the relevant deadline in which an application was not made would automatically decrease the prospect of the respondent persuading a court that he had acted promptly.
(5) The court office had failed to act as it should have done: the only proper response would have been to issue an application to extend time either before the period expired or immediately afterwards. That would at least have alerted the appellant to the fact of the claim. In fact, the appellant was not to find out about the claim for another five weeks which was precisely what rule 7.6(3)(c) was designed to avoid.
Accordingly, the respondent had failed to demonstrate either that he took all reasonable steps to serve the claim form within the six-week period, or that he acted promptly in making the application for an extension of time. The judge failed to address either of those points head-on and therefore failed to consider all the relevant factors. In those circumstances, the court had no jurisdiction to consider the planning statutory review under section 288.
Michael Fry (instructed by the Government Legal Department) appeared for the appellant; Michael Rudd (instructed by Tedstone, George and Tedstone Solicitors, of Stafford) appeared for the respondent.
Eileen O’Grady, barrister
