In R (Dawatul Islam UK & EIRE) v OFSTED (13 July 2016, unreported) the High Court refused permission for a judicial review to proceed to a substantive hearing because of a failure to bring the proceedings "promptly and in any event within three months", highlighting the difficulties in interpreting and complying with the judicial review timing rules.
- Judicial review proceedings must be commenced "promptly and in any event within three months" of when the grounds of challenge first arose.
- This does not mean there is an automatic three month period in which to bring a claim – the overarching requirement is promptness.
- The court will look at the substance of what is being challenged to determine when the relevant "decision" took place and time started to run.
- If a claimant is aware of a decision before its publication, it cannot assume that time will only start running from the date of publication.
The claimant was an Islamic faith school which had been the subject of an inspection and report from the defendant schools inspectorate in November 2015. The report had raised some concerns about the school, which was given an opportunity to comment on the draft report before it was finalised. In December 2015 the school was then sent the final version of the report. Again the report was critical in relation to some aspects. The report was published on 4 January 2016.
The school filed judicial review proceedings on 4 April 2016, exactly three months after the publication of the report. However the court did not stamp the proceedings until 11 April 2016 which meant that the High Court judge who initially considered the papers to determine whether permission should be granted mistakenly thought the claim had been filed outside the three month period and refused permission.
The school sought a reconsideration of that refusal of permission at an oral hearing before the High Court, where it argued that it had not been in a position to act more quickly because the old head teacher had left at the end of December 2015 and a new head teacher had not taken up the post until 11 January 2016. The school alleged that the contents of the report were unfair, wrong or unlawful.
CPR 54.5(1) states that:
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.
Holman J acknowledged that the judge looking at the papers had been mistaken in thinking that the proceedings had been filed outside the three month period. However, the three months was intended to be an ultimate cut off point, with the overarching requirement being one of promptness. Whether proceedings had been brought promptly enough was a matter for the court to judge.
On the present facts, although the school was unhappy with the publication of the report, its actual challenge was to the substance or content of the report. This content had been communicated to the school in final form in December 2015. Taking that as the date when grounds to make the claim first arose, it was apparent that the claim had been filed out of time.
Holman J was not persuaded by the argument as to the lack of a head teacher for a short period, noting that the school still had governors and therefore could have taken some action such as seeking an injunction against publication.
It was also relevant to the refusal of permission that by the time of this hearing the report had been public for six months and therefore anyone who wanted to read it would probably already have done so. In addition the school was due to be re-inspected at the start of the autumn term in 2016 meaning that if improvements had been made the next OFSTED report would no doubt reflect that.
Permission to proceed with the judicial review was therefore refused on the grounds of delay and on the basis that there would in any event shortly be a new report.
This decision emphasises that judicial review time limits will run from when a claimant was first aware of the matter they intend to challenge, even if the decision has not been formally published at that stage. Generally the courts are keen to enforce short time limits in judicial review to maintain certainty of public decision making and good administration. In certain contexts, for example where third parties are affected and may be acting in reliance on the public body's decision, promptness is even more important. The courts will not generally be sympathetic to availability of key personnel or administrative issues at the claimant as explanations for delay.
Claimants who are potentially considering challenging the decision or action of a public body should therefore seek legal advice as soon as possible so that they can properly consider their position and be able to start proceedings quickly.