R (Nash) v Barnet London Borough Council [2013] EWHC 1067 (Admin)

A recent decision of the High Court has highlighted the uncertainty around when time starts to run for bringing judicial review proceedings where there may be series of decisions and an arguable “continuing breach.

In this case, the High Court has dismissed a challenge to the decision of Barnet London Borough Council (the “Council“) to move to a so-called “easyCouncil” model of procurement on the basis that the claimant’s application was out of time.

The Council had decided in November 2010 to approve the “One Barnet” programme, which aimed to make efficiency savings by outsourcing many Council functions and services to private providers. Critics dubbed the model “easyCouncil” because of fears that residents might be forced to pay extra if they wanted provision of more than basic services.

The claimant, a Council resident, sought to challenge the lawfulness of the decision to authorise the contracts after the procurement (the “Decision“) on the basis the Counsel had failed to comply with its consultation and equality obligations, as well as its “fiduciary duty” to tax payers.

The Council argued that the claimant was out of time to bring a claim as the decision to adopt the “One Barnet” model was made in November 2010 and the proceedings were not commenced until 10 January 2013.

The claimant defended the timing of the application on the basis that, following R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593, she need not have challenged the earlier decision as it was of a preliminary nature (not in itself creating legal rights or obligations). Fresh grounds to make a claim arose when the actual decision to authorise the contracts was made.

Lord Justice Underhill did not accept that the upshot of Burkett was that whenever a decision was made by a public body at the end of a chain of decisions, time would run from the latest decision. Rather, the relationship of the latest decision to the earlier decisions had to be considered. He held that in Burkett, the grant of planning permission was preceded by a resolution approving the award that was subject to certain conditions. The conditional nature of the resolution meant that nothing was truly decided at that point in time and so it was appropriate for the Court to allow a challenge to the later decision.

The present claim could be distinguished from Burkett. Here, the decision to outsource Council functions was not “preliminary, provisional or contingent.” Therefore, the claimant should have brought her claim within three months from when the Council decided to proceed with the outsourcing process and initiate the procurement procedures, not when specific contracts were awarded to particular partners. Consequently the claimant was outside the required time limit and permission was refused.

Despite deciding that the claim fell outside the required time limit, the Court also considered the substantive arguments.

On the issue of the failure to consult, Underhill LJ found that the Council had not complied with its statutory consultation obligations under the Local Government Act 1999 (the “Act“). However, the Court nevertheless made it clear that it would not necessarily have quashed the Council’s decisions to award specific contracts to particular parties, as it would have given “serious consideration” to the Council’s argument that relief should be withheld on the basis of undue delay in bringing the claim, such that granting relief would have been detrimental to good administration.

Both the equality duty and fiduciary duty points were given short shrift by the Court.

On the equality duty, the Court held that there was insufficient explanation by the claimant as to the “concrete and specific” issues. Underhill LJ commented: “Public sector equality challenges are rather too easily advanced in vacuo.”

The fiduciary duty point was dismissed on the basis that the evidence did not establish “the kind of reckless disregard of the principles of financial planning or management that is necessary to make good a claim of this kind.”

This case provides some additional guidance as to when judicial review proceedings should be brought when there is a series of decisions or an arguable continuing breach, although difficult questions remain as to what amounts to a “substantive” decision.

It also highlights the risk that even good substantive arguments will not necessarily overcome the impact of delay whether at the permission stage or when the Court is deciding on the appropriate remedy.  

This marked an easy win for the “easyCouncil”.  Risk-averse claimants will want to carefully consider proceeding with challenges to procurement policy as soon as any relevant decisions are taken.