The High Court has held that in any case in which the claimant is seeking to rely on an EU directive the deadline for bringing judicial review proceedings is three months rather than "promptly".

Key Points

  • The decision in Uniplex (UK) Limited v NHS Business Services Authority is not confined to proceedings under the Procurement Directive.
  • The Uniplex decision applies general and core principles of EU law which are applicable to all EU directives.
  • Where a claimant is attempting to rely on rights conferred by an EU directive the deadline for commencing judicial review proceedings is three months, whereas previously they had to be brought "promptly and in any event within three months" of the grounds of challenge arising.

Background

The subject-matter of the judicial review application was the grant of outline planning permission by the defendant ("Medway") to the first interested party ("NGPH") to develop a business park.

The Invertebrate Conservation Trust ("Buglife"), a charity whose principal object is the protection and preservation of natural invertebrate fauna and their conservation in the wild, argued that the planning permission decision was flawed. The planning permission process is governed by the EIA Directive (85/337). Buglife asserted that NGPH and Medway had not fulfilled a number of the requirements set out in the EIA Regulations (the domestic legislation giving effect to the EIA Directive), and consequently sought an order quashing the planning permission.

Time limits for bringing judicial review claims

Civil Procedure Rule 54.5 provides that in judicial review cases:

"(1) The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose."

Section 31(6) of the Senior Courts Act 1981 permits a court to refuse to grant permission to make an application if it considers that there has been undue delay.

Medway and NGPH both argued that although the claim was filed two days within the three-month time limit (running from the date of the grant of the planning permission), the proceedings were not filed promptly, and permission therefore should be refused. Medway referred to the six-week time limit imposed on appellants wishing to challenge a planning inspector's decision using the statutory appeal procedure as a guide to the length of time that should be considered as reasonable. NGPH referred to the prejudice it had suffered in being unable to make an effective start in its marketing campaign for take-up of space in the business park.

Did Buglife's application have to be prompt?

Buglife argued that it had an unqualified period of up to three months to file its claim. To support this position Buglife relied on the Court of Justice of the European Union ("CJEU") decision in Uniplex (UK) Limited v NHS Business Services Authority.

The Uniplex case concerned the Public Contracts Regulations 2006, which give effect in domestic law to the EU Procurement Directive (89/665). The Regulations provide that proceedings arising out of the Directive and the Regulations must be brought promptly and in any event within three months from the date when grounds for bringing the claim first arose (mirroring CPR 54.5). The time limits under the Regulations were challenged. The CJEU held that that they infringed the requirement of Community law that limitation periods should be sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations.

Buglife argued that the CJEU's reasoning must be extended to all proceedings concerning EU directives.

Medway and NGPH contended, however, that the Uniplex decision was confined to the relevant time limits imposed for proceedings associated with the Procurement Directive.

The Court's decision

The Court did not accept Medway and NGPH's limitation of the Uniplex decision, stating that:

"The decision applied general and core principles of Community Law which are applicable to all directives. The requirement of certainty and the application of that requirement to limitation periods imposed on those seeking to enforce their rights arising under the directive in a national court has general application to such enforcement proceedings arising out of any directive. In those circumstances, it is clear that there was a failure of the legislature to transpose the Environment Directive into domestic law in a way which avoids uncertain time limits arising from the requirement of promptness."

The Court agreed with Buglife that the requirement to be prompt is not now enforceable where EU directives are in question.

Commentary

The requirement to act "promptly" in judicial review proceedings is frequently problematic for claimants, there being no guarantee that filing a claim within 3 months will be prompt enough. This is not the first time that the promptness requirement has been called into question – in R (on the application of Burkett and another) v Hammersmith and Fulham London Borough Council [2002] 3 All ER 97 it was argued that it was incompatible with EU law and the European Convention on Human Rights.

This decision is very significant, as it confirms that in any case in which the claimant seeks to enforce an EU directive the deadline for bringing proceedings is three months rather than promptly. This will clearly provide claimants with much more certainty. It remains to be seen whether the decision will be appealed or if not, what if any knock-on effect it will have on judicial review claims more generally.

R (Buglife) v Medway Council [2011] EWHC 746 (Admin)