It has long been recognised that a claim for judicial review may be filed within the three-month period referred to in CPR 54.5(1) and yet not be filed “promptly”. The two requirements are separate and independent. It is equally well recognised that what amounts to “promptness” will vary from case to case. Probably some of the most useful comparatively recent guidance in this area is to be found in the decision of the Court of Appeal in R (on the application of Finn-Kelcey) v Milton Keynes Council [2008] EWCA Civ 1067; [2008] PLSCS 267. It will still be necessary to refer to that guidance where cases such as R (on the application of Powell) v Brighton Marina Company (see PP 2014/122) arise.
In Finn-Kelcey, the claimant had applied to quash the grant of planning permission for a wind farm. His claim was filed very shortly before the expiry of the three-month period. A principal issue for the court was whether it had been filed promptly. Keene LJ first explained that the need for promptness arises in part from the fact that a public law decision by a public body normally affects the rights of parties other than the claimant and the decision-maker. Those parties, and indeed the public, should be entitled to proceed on the basis that the decision is valid and can be relied upon, and that they can plan their lives and make personal and business decisions accordingly.
(In general, the court will consider whether there is a reasonable objective excuse for the delay, what hardship or prejudice to third-party rights would flow from excusing the delay and whether public interest requires that the challenge should go ahead.)
In Powell, the court recognised that – following Finn-Kelcey – there was an expectation of promptness that required to be judged against the entire background of the case. The judge concluded that the claimant was well aware of the issues that he sought to raise and had, in fact, raised similar ones since 2006. He had instructed experienced solicitors, and they had been on the record from October 2013. Furthermore, there had been significant investment in bringing forward the development scheme. Very substantial prejudice would flow from allowing the claim. In consequence, it had to be said that the claim had not been brought with appropriate promptness.
John Martin
