Is the promptitude requirement in judicial review proceedings compatible with EU law?

Public law practitioners will be familiar with the requirement in CPR 54.5 that a judicial review claim form must be filed 'promptly' and 'in any event not later than three months after the grounds to make the claim first arose'. The requirements are independent and a claim can fail for lack of promptness even if it is brought well within the three-month period. A separate power also exists to refuse leave or substantive relief if there has been 'undue delay' (section 31(6) of the Senior Courts Act 1981).

Nearly a decade ago, the House of Lords expressed doubt about whether the obligation to apply 'promptly' was sufficiently certain to comply with European Community law in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23.

This doubt was confirmed by the Court of Justice of the European Union's decision in Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority. The Luxembourg judges held that the requirement in the Public Contract Regulations 2006 that proceedings under the regulations be brought 'promptly' was contrary to the Community law principles of certainty and effectiveness.

Uniplex triggered arguments in a number of planning/environmental judicial reviews that the promptness requirement in CPR 54.5 should not apply where the case raised issues concerning the application of the Environmental Impact Assessment Directive (directive 85/337). Initially, courts were reluctant to apply Uniplex outside the procurement field (see, for example, R (Pampisford Estate Farms Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 131 (Admin), and R (Caroll) v Westminster City Council and another (unreported, 9 July 2010)).

However, subsequently, HHJ Thornton QC in R (Buglife) v Medway Council [2011] 3 CMLR 39 and Collins J in R (U & Partners (East Anglia) Ltd) v The Broads Authority and the Environment Agency [2011] JPL 1583 took a different view. They considered that the CJEU's reliance on the principles of effectiveness and legal certainty applied just as much to any limitation provision which failed to represent a proper transposition of a directive by lacking certainty. Adopting this approach, Uniplex applies to all directives (and not just the Public Procurement Directive (directive 89/665)).

The matter came before the Court of Appeal recently in R (Berky) v Newport City Council [2012] EWCA Civ 378. LLJ Carnwath, Moore-Bick and Sir Richard Buxton's comments on timing are strictly obiter and, to add more potential uncertainty, flatly contradict each other on some significant principles.

What appears unanimous from their judgments is that Uniplex applies to the application of all directives (although Carnwath LJ was reluctant on this point, stating it was uncertain and he would make a reference to the CJEU if the decision turned on it, and Sir Richard Buxton also expressed caution). However, there was clear disagreement over whether a court could nevertheless exercise its domestic power to refuse relief under section 31(6) of the Senior Courts Act 1981 notwithstanding Uniplex, and whether the 'promptness' requirement would continue to apply to domestic grounds brought as part of a mixed EU/domestic claim.

LLJ Carnwath and Moore-Bick LJ saw no reason why Community and domestic law grounds should not be subject to different time limits. However, Sir Richard Buxton considered that Uniplex disapplies time limits in respect of all grounds so long as there is an EU ground and it is not plainly unarguable. On the application of section 31(6) SCA 1981, Moore-Bick LJ and Sir Richard Buxton took the view that, if Uniplex applied to CPR 54.5, it applied equally to the interpretation of 'undue delay'; whereas Carnwath LJ took the opposite view.

Mixed results

It now appears that:

'¢ Uniplex applies to any directive and there is no promptness requirement in respect of a ground which deals with the application of Community law.

'¢ Courts should not go on to refuse relief under section 31(6) SCA 1981 in such a case.

'¢ The effect of Uniplex is not to disapply the promptitude requirement in respect of domestic grounds within a mixed EU-domestic challenge.

Sir Richard Buxton's comments that a limitation period applies in relation to the relief sought, and not severally in relation to the various grounds on which that relief in based, are forceful and may find form if the matter were to be subject to a view by the Supreme Court or the CJEU.

It seems more likely now than ever before that the Rules Committee will have to review CPR 54.5 to reconcile EU and domestic law; otherwise an unsatisfactory two-tier system will persist. This is also against the background of rumbling issues concerning whether the requirement infringes the European Convention on Human Rights and is at odds with the Aarhus Convention.

Practitioners should remain vigilant to ensure that claimants bring domestic grounds 'promptly' as well as within three months; and they should warn respondents that hitherto successful arguments on delay will no longer wash with the courts, in respect of EU issues.