The Administrative Court has recently handed down its judgment in R (on the application of Maria Stella Nash) v Barnet London Borough Council & (1) Capita Plc (2) EC Harris LLP (3) Capita Symonds (Interested Parties) [2013] EWHC 1067 (Admin). The claimant had sought judicial review of the defendant's decision to outsource a number of core council functions to commercial service providers. The court found that the claimant was out of time under CPR 54.5, as the decision she was challenging was in effect the local authority's earlier decision to proceed with the procurement process for the outsourcing, rather than the later decision to award the outsourcing contracts specifically to the Interested Parties.

Key points

  • Time in which to make a claim for judicial review starts running when the decision in dispute is first made, even if there are subsequent, related but distinct decisions.
  • Potential claimants should be ready to commence proceedings as soon as a decision as to a course of action has been taken by the decision-maker.
  • Decision-makers and interested parties may take comfort from the knowledge that decisions are less likely to be open to challenge further down the line – this decreases the risk of wasted investment.

Background

In 2008, the defendant local authority initiated a review of its service provision and structure. As a result of this review, the local authority decided that some of its services would be better provided by outsourcing them to external service providers. In November 2010 and March 2011 the council took decisions to begin the process of identifying commercial partners for two proposed outsourcing contracts, and in December 2012 decided to award one of the outsourcing contracts to Capita, and shortlisted Capita Symonds and EC Harris for the other.

On 10 January 2013 the claimant, a resident of the London Borough of Barnet, commenced judicial review proceedings against the local authority. The claim was based on an alleged failure to consult on the outsourcing proposals, breach of the public sector equality duty in section 149 of the Equality Act 2010 and breach of fiduciary duty to council tax payers.

The local authority argued in reply that, among other things, the claimant's application was out of time under CPR 54.5.

Judgment

The court found in favour of the local authority, holding that the claim based on failure to consult was out of time, since the time period in which to bring a claim in this case should run from the decisions made in 2010 and 2011 not from the decision in December 2012.

CPR 54.5 states that in applications for judicial review, "The claim form must be filed … not later than 3 months after the grounds to make the claim first arose". In cases such as this where the decision is made in multiple stages, it is not immediately apparent when a claim might first arise. The claimant's application for judicial review stated that the claim related to the local authority's decision in December 2012 to outsource the services to the Interested Parties. If this were correct, the application, filed in January 2013, would have been in time. However, the local authority argued that the applicant was, in substance, contesting the earlier decisions in 2010 and 2011 to commence the outsourcing procurement process, or rather, that the claim 'first arose' for the purposes of CPR 54.5 in 2010 and 2011. In other words, the defendant argued that the claimant was challenging the decision to outsource the services, not the decision to award the contracts specifically to the Interested Parties. This would mean that the claim was out of time.

The claimant relied on the House of Lords' decision in R. (on the application of Burkett) v Hammersmith and Fulham LBC (No.1) [2002] UKHL 23, [2002] 1 W.L.R. 1593. In Burkett, a planning claim, the court held that the time limit for bringing judicial review should run from the actual grant of planning permission, rather than the planning authority's earlier resolution which had indicated that it intended to grant planning permission. However, the court distinguished Burkett from the present case, on the basis that in Burkett the prior resolution had merely been a "preliminary or provisional foreshadowing of the later decision", whereas in the present case, "the earlier and later decisions are distinct, each addressing what are substantially different stages in a process". The result is that, if the earlier decision is in reality what is being objected to, then "the making of the second decision does not set time running afresh".

The court cited various authorities prior to Burkett, all of which suggested that initial decisions of public bodies, if substantive, would be likely to function as the trigger for the timing provisions under CPR 54.5. In light of this, it was proposed that Burkett was in fact limited in its scope: the court stated that "it would be rather surprising if Burkett had silently over-ruled [a] well-established line of authority".

In further support for this interpretation, the court cited with approval the judgment in R(Unison) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin). In that case, the defendant primary care trust had made various decisions to proceed with an outsourcing project with an identified commercial partner. In similar fashion to the present case, these decisions were challenged more than three months after they had been taken, on the basis that the contract had not yet been concluded. The court held that time had started to run from the making of the decisions, and the fact that the final terms of the contract were still to be agreed did not reset the clock. In the present case the court viewed that the court in the Unison case "did not regard Burkett as laying down a universal rule that in the case of a staged decision-making process time for a challenge will always start to run afresh when the final decision in the process is made".

The court in the present case also held that, in the circumstances, it would be contrary to principles of fairness and good administration for the decision to be challenged. The 2010/2011 decisions had already been partially implemented to the extent that the council had invested at least £4.5 million in the project, and the court anticipated that significant sums had been invested by the Interested Parties. For the decision to be challenged or even reversed at this late stage would be to create uncertainty and disruption, precisely the consequences CPR 54.5 sought to avoid.

Although the court held that the claim was out of time, it proceeded to discuss the merits of the claim on an obiter basis. In this section of the judgment, the court concluded that the local authority had failed in its duty to consult, but had not breached its fiduciary duty to the claimant nor the public sector equality duty (notwithstanding that the latter claim was not wholly out of time, as it partly related to an equality impact assessment that had been carried out in December 2012).

Comment

In light of the government's proposed revisions to the time limits for bringing judicial review – due to come into force on 1 July 2013, and which will cut the time limits in both planning and procurement cases – it is more important than ever to be clear on when a time limit will be deemed to have started to run (see our separate e-bulletin on these reforms).

This case highlights the difficulty in identifying when a claim 'first arises' for the purposes of triggering the time limits in CPR 54.5. Claimants should be aware that initial decisions in a succession of related decisions could be viewed by the court as setting time running, and should be prepared to commence proceedings at the earliest possible stage. Public bodies involved in such cases may take some comfort from knowing that the likelihood of their decisions being challenged during a staged decision-making process may decrease as time elapses following the initial decision, which could provide reassurance that investment in the project is less likely to be wasted. For commercial parties, this knowledge might inform any risk assessment carried out before making a decision to invest in a public procurement project.

In this case the court sought to distinguish the House of Lords judgment in Burkett, not only from the present case but from the line of case law preceding Burkett. Practical and policy considerations were clearly important to the court in reaching this decision: the court opined on the issues of fairness and good administration at an early stage of the judgment, before even embarking on any analysis of the legal position.

The Claimant's solicitors have indicated in press reports that the Claimant intends to appeal the decision, and it is possible that this question will receive further judicial consideration