CPR 54.5(2) is clear: the time limit for filing the claim form for judicial review may not be extended by agreement of the parties. The justification for the rule is well-known. Undue delay sits uncomfortably with good administration since public bodies need certainty as to the validity of their decisions – and third parties need to be able to rely on those decisions (see R (Law Society) v LSC). But should parties be able to pursue alternative remedies with confidence that their judicial review option will not expire? The court has attempted to square this circle in the recent case of R (Zahid) v University of Manchester.

In Zahid, the claimants commenced protective judicial review proceedings while pursuing a reference to the students’ complaints scheme (the Office of the Independent Adjudicator or “OIA”). They wished to reserve their position as to judicial review while attempting to resolve disputes with their universities via the OIA. Following a reasonably lengthy judgment, each of the three claimants was granted a stay of proceedings (to which one of the defendants had agreed from the start) while they pursued ADR.

The court can, of course, extend time limits using its case management powers if parties apply late for judicial review. Indeed, it has laid down guidelines for doing so. Following R v Secretary of State for Trade and Industry Ex p. Greenpeace Ltd, the court should assess whether there is a reasonable objective excuse for applying late; what the likely damage would be in terms of hardship or prejudice to third party rights and detriment to good administration; and whether the public interest requires that the application be permitted to proceed.

However, parties are unable to agree on an extension based on their own application of these guidelines to their circumstances. And herein lies the tension alluded to in Zahid: per the overriding objective, litigation in the Administrative Court, which has become one of the busiest specialist courts in the High Court, must be dealt with justly and at a proportionate cost. Yet as a result of CPR 54.5(2)’s prohibition, parties are nonetheless required to launch judicial review proceedings and seek a stay while attempting ADR, merely to protect their position in the event ADR fails, and even if the above Greenpeace guidelines apply. This inevitably results in unnecessary expense.

As it stands, parties need certainty. The claimants in Zahid were not willing to risk the court denying them an extension should their claim with the OIA fail, despite the relevance of the Greenpeace guidelines to their case. It is in this context that Mr Justice Hickinbottom has intervened. Citing the need to minimise both expenditure and the burden placed on the courts by unnecessary proceedings, he noted that, “if they [the parties] agree that any court proceedings can await the outcome of the OIA reference – as they should and will, in the vast majority of cases – absent extraordinary circumstances, it seems to me that they can have confidence that the court will be driven to exercise its discretion to allow an extension of time to file any proceedings if that reference is not successful in resolving the complaint“.

The circumstances of this dictum are, of course, fact-specific: all claimants in Zahid were challenging their own expulsion, the reversal of which would have limited wider repercussions. Further, they were requesting a stay of proceedings so as to pursue ADR, thereby serving the public interest in seeking a resolution outside of court. Nonetheless, despite recognising the court’s ultimate right to overrule the parties’ agreement, his call for parties to agree an extension of the three month time limit themselves appears to prioritise the overriding objective over CPR 54.5(2)’s prohibition.

Indeed, the judgment is a clear acknowledgement of the tension inherent in mandating that all cases be dealt with at a proportionate cost and providing clear guidelines as to when parties may apply late for judicial review, but prohibiting parties from applying these guidelines themselves (thereby encouraging protective proceedings). Seeking to resolve this tension by suggesting that, in the appropriate circumstances, the courts would likely be driven to grant an extension based on the parties’ agreement is an interesting development and may herald a change of approach by the courts to time limits for judicial review.