Time’s up: judicial review claim for super-sewer dismissed

From the London Evening Standard 22/01/15:

A council was today accused of being “totally incompetent” after the legal challenge against London’s controversial super-sewer collapsed because it submitted court papers late.

Southwark’s leader today sought to explain the cock-up by blaming “ambiguous” rules setting out deadlines for submitting papers.

Don’t snigger.  However much you might want to.

Lib Dem opposition leader at Southwark Anood Al-Samerai said: “We all trusted the council to represent our community in court.

“Now the case for a judicial review has been thrown out all because the council couldn’t manage to submit its paperwork on time.

The council explained it had been working to a time-frame which would have been acceptable had new reforms currently being discussed in Parliament been passed.

But with the new rules yet to come into full force, the judge applied existing rules which deemed the council’s court papers to be late.

On the face of it, this sounds unforgivable.  Job number one in running any kind of litigation is to get the timing right.  Heck, it’s built into most matter-management software these days.  Superbly formed legal arguments don’t count for much if your claim is thrown out for failing to adhere to the time requirements.

But is the relevant rule on timing as ambiguous as the council claimed?

Let’s have a look.

There’s a good write-up on this by the Government Lawyer, so I won’t bother reinventing the wheel paraphrasing.  Yep - I’ll take the lazy route and quote the source verbatim:

The Planning Act currently says that the claim form must be:

"filed during the period of 6 weeks beginning with ... the day on which the order granting development consent is published."

If the [decision] is published on Thursday 1 January, then is the last day for a claim Wednesday 11 February or Thursday 12 February?  It seems that the judge decided it was the former yesterday.

Time to get counting on your fingers.

The Criminal Justice and Courts Bill, which is almost at the point of Royal Assent, will amend the deadline in Planning Act (and several other acts). Section 91(4)(c) will change the above text to the claim form must be:

"filed before the end of the period of 6 weeks beginning with the day after ... the day on which the order granting development consent is published."

That would make it 12 February in the example.

The Civil Procedure Rules say:

"Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose."

That suggests Thursday 12 February.

Yes.  That makes a lot of sense.  It follows the general rule on calculating time periods under the CPRs: the start day should normally be regarded as day zero and you count forward from there, unless the relevant period is described as "beginning with" a specified day, in which case that day is included in the period.

Having said that, the Planning Act 2008 is not one of 'the planning acts' in that context.

Update: I’ve edited the following segment of the post after initial publication.  Angus Walker, author of the post I quote above (and of the Planning Act 2008 blog), kindly drew my attention to section 118 of the Planning Act 2008.  That section sets out the time period for bringing a relevant JR claim and overrides the CPRs.  In light of that, my points in the following two paragraphs are no longer valid.  My bad.

Whoah. Back up a second there.  It’s not one of the planning acts?  Let that sink in for a moment.

A cursory read of section 336 of the Town and Country Planning Act 1990 suggests that the Planning Act 2008 indeed isn’t one of the relevant ‘planning acts’.   If it isn’t, then CPR 54.5 (5) doesn’t apply, meaning the application must surely be subject to the general rule on timing for judicial review claims set under CPR54.5(1).  That rule says the time period for bringing an application for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.

Either way, I can’t see that the ‘Wednesday 11 February’ interpretation is the right one.  From Southwark council’s perspective, the decision is worth challenging.  (It’s known as a ‘punt’ in the legal profession which, yes, is a legal term of art.  Ahem.)

But what a frickin’ mess!  Wouldn’t some harmonisation provisions on timing applied to all types of domestic legislation and the civil procedure rules work wonders here?  

That much-cited aspiration for legal certainty should apply to the procedural stuff as well as to the substantive law.

And it would save members of the legal provision from a lot of grey hair and red faces.