The need to play by therules in judicial review

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Two planning judicial review cases have recently come to an end in the Court of Appeal with decisions that show that public law is not “The Wild West” when it comes to matters of procedural compliance and abuse of process. BLP’s Planning & Environment Team successfully acted for the Interested Party in both sets of proceedings, which concerned planning permissions for, respectively, the upgrading of the existing Wightlink ferry service at Lymington and the redevelopment of the Cherkley Court Estate in Surrey as a luxury hotel and golf course.

The wider context for these decisions is the post-Jackson emphasis of the Courts on the need for parties to comply with Court orders, rules and practice directions. In this regard the high profile case of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 laid down a set of guidelines concerning procedural breaches, which were further developed by the Court of Appeal in Denton v TH White Ltd [2014] EWCA Civ 906.

Lymington

Whilst the decision in R (Lymington River Association) v Secretary of State for Communities and Local Government [2014] EWCA Civ 1190 did not consider the approach in Denton (the two decisions being days apart from each other), it illustrates that the Court will not tolerate parties who seek to circumvent statutory time limits.

In this case the Claimant had initially sought to legally challenge the Secretary of State’s decision to grant two planning permissions on appeal but had missed the statutory 6 week time limit for such challenge. Notwithstanding this, the Claimant subsequently invited the Secretary of State to revoke the planning permissions in order to rectify an alleged error of EU law and then sought to judicially review the Secretary of State’s decision not to revoke the consents.

The Claimant’s case was dismissed by the Court of Appeal at the permission stage. In his judgment, Lord Justice Sullivan forcefully rejected the Claimant’s case, stating that “It is the clearest possible example of what I might call a “boot straps argument”, that is to say, a claimant who seeks to pull himself up by his own boot straps” and describing the Claimant’s request to the Secretary of State that he revoke the planning permission as “a blatant attempt to side-step a time limit”.

Cherkley Court No. 2

Any doubt about the relevance of Denton to public law cases has now been firmly dispelled by the decision in R (Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWHC 3291 (Admin), the second set of judicial review proceedings relating to the Cherkley Court development. The claim was dismissed by Mr Justice Jay on the grounds of abuse of process and delay, as well as its underlying merits.

The delay point in the case concerned the Claimant’s non-compliance with a notice requirement in a Court Order staying the proceedings pending the Court of Appeal’s decision in the first judicial review concerning the development. In this context, Mr Justice Jay took the opportunity to modify the three stage approach set out in Denton for public law/planning cases. His two modifications, at paragraph 37 of his judgment, were that, firstly, in a public law case “the rights and interests of those beyond the mere litigants” are relevant and, secondly, in Planning Court cases, a stricter approach to time limits is “the order of the day”.

Applying the Denton approach with these modifications, Mr Justice Jay concluded that the breach of the Court Order was serious and significant in terms of the proper conduct of the litigation (the Interested Party being entitled to know whether the second claim had come to an end following the Court of Appeal’s decision in the first judicial review), the Claimant had no proper explanation for the delay/breach, and there was no good reason to extend the time in all of the circumstances (even if he had considered that the Claimant’s case had been arguable on the merits).

Separately Mr Justice Jay found the Claimant’s case to be an abuse of process/estopped on the basis that the Claimant was re-running a ground that had been refused permission in the first judicial review.

The Claimant appealed. On 27 November 2014, Lord Justice Aikens dismissed the Claimant’s appeal on the basis that Mr Justice Jay’s reasoning on the delay point was “impeccable”. He also found that Mr Justice Jay was correct in law on the abuse of process point and explicitly rejected the Claimant’s argument that abuse of process/estoppel cannot be applied to public law claims.

The message to the parties to judicial review proceedings is clear: Ignore the rules at your peril.

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