Time, tide and the Administrative Court Office wait for no man

As a recent Court of Appeal decision illustrates, the Administrative Court is keen to maintain the certainty of statutory time limits, but informal practices in how the Court operates has resulted in uncertainty for those filing claims and court papers. Michael Dempsey discusses the safest approach for those wishing to file statutory challenges under s288 TCPA 1990 in light of these uncertain Court operations as well as the limited circumstances where the statutory time limit may be extended.

On its face, there is nothing unusual in the Court of Appeal’s recent decision in Croke v Secretary of State for Communities & Local Government [2019] EWCA Civ 54 it is well established that there is no judicial discretion to extend the statutory time limit in section 288 of the Town & Country Planning Act 1990 (TCPA) and Mr Croke had failed to file his legal challenge at the Administrative Court Office (ACO) within the relevant six week period. However, the facts around Mr Croke’s failure to lodge in time make interesting reading, and, as this article explores, provide the context for the Court of Appeal to give a useful overview of the limited circumstances in which the statutory time limit can be extended.  

The facts

Mr Croke was seeking to legally challenge a planning appeal decision pursuant to section 288 of the TCPA.  The essential facts, which were not in dispute, were as follows:

• Mr Croke intended to go to the ACO on 23 March 2016, which he was aware was the last day of the challenge period.
• Unfortunately Mr Croke missed his train and so he instructed a local agent, Mr Miller, to lodge the application on his behalf.
• Having returned home, Mr Croke’s initial attempt to send Mr Miller the papers failed due to a mistyped e-mail address.
• Mr Miller eventually received the papers after 4pm and arrived at the Royal Courts Justice at 4.25pm but was refused entry by the Court’s security on the basis that the ACO counters were closed.
• The next day Mr Croke attended the ACO himself, joining the queue at 3.25pm. When he was eventually seen at 5pm, the Court officer refused to accept his application on the basis that he had used the wrong form. Mr Croke was told to return the next working day with the correct form.
• Due to the intervention of the Easter Bank Holiday weekend, the next working day was 29 March 2016 and this was when Mr Croke finally filed his claim.

The High Court found in the Secretary of State’s favour. Mr Croke appealed, arguing that the statutory time limit should have been extended first from 23 to 24 March and then from 24 to 29 March because it was the actions of Court staff that had stopped him from lodging his challenge on both days.

The Court of Appeal’s decision

The central question before the Court of Appeal was whether the statutory time limit for bringing a challenge under section 288 of the TCPA is absolute, even where the applicant may not be entirely responsible for the late filing of the application.

Analysing previous case law, the Court identified only two circumstances in which the statutory time limit could be extended:

• Where the deadline falls on a day when the court office is closed, in which case the time limit is extended to the next working day (the ‘Kaur principle' [1]); or
• In the exceptional circumstances where section 3 of the Human Rights Act 1998 requires the Court to give effect to legislation on human rights grounds (here Article 6(1), the right to a fair and public hearing).

Mr Croke had argued for an enlargement of the Kaur principle to cover actions of the Court and its staff. The Court rejected this argument on the basis that the Kaur principle is not a matter of judicial discretion, but simply the calendar. The principle simply did not apply in this case because 23 March was a normal working day and, in the Court’s view, it was inappropriate to expand the principle to cover Mr Croke’s circumstances because it would reduce the certainty of the fixed time limits and the Kaur principle itself.

Whilst Mr Croke had not run a human rights argument, the Court of Appeal nonetheless considered the point, reaching the conclusion that there was no violation of Mr Croke’s right to access a court under Article 6. Whilst the Court acknowledged that at worst Mr Croke might complain that he was denied the last 5 minutes of the six week period, the security officer’s actions on 23 March was not the sole or critical event to constitute the exceptional circumstances needed for the Court to exercise its discretion on human rights grounds.

The appeal therefore failed at this point. 

Comment

The Court of Appeal’s decision in Croke follows well established case law and in that sense is unremarkable.

However, the case does provide a rare example of an instance where the Court may be minded to extend the statutory time limit. Specifically the Court indicated that, had 24 March been the last day, there would have been “force” in the submission that the refusal of ACO staff to permit the use of the Court form that Mr Croke was using amounted to exceptional circumstances justifying an extension of time. This was based on the Secretary of State conceding that Mr Croke had in fact been entitled to use the form, putting him in a comparable position to the appellant in Yadly Marketing v Secretary of State for the Home Department [2].

Whilst this was an obiter view, it does throw up the question of what is the essential difference between a claimant being refused entry to the Court building at a time when it is still supposed to be open (23 March) and a claimant erroneously being turned away at the counter (24 March)? Both scenarios turn on the actions of the Court staff and only result in a missed deadline where there is no room for error. Notwithstanding the Court’s rationalisation that the events on 23 March were part of a sequence for which the claimant must bear some responsibility, it is difficult to see why the actions of the security officer were not ultimately decisive – after all, the ACO is supposed to be open until 4.30pm and so there were still 5 minutes in which the claim could have been filed. 

Stepping back, what the facts in Croke perhaps highlight most is the growing gap between the ACO’s official hours [3] and how it operates in practice. No longer would Mr Croke be seen at 5pm as he was on 24 March simply because he was already in the queue. The ACO now operates a policy where, regardless of queue length, the counter closes well before 4.30pm (in our experience times seem to vary) and anyone wishing to lodge papers that day must deposit them in a drop-box instead. The papers are then treated as being filed the same day, provided that the ACO finds no problems with what has been deposited.  

Whilst the Court has been keen to maintain the certainty of the statutory time limits, informal practices of this nature result in uncertainty for those filing papers at the ACO. With e-filing not being an option, by far the safest approach for those wishing to bring a statutory challenge is to file before the last day. But, if this is unavoidable, to at least get to the ACO early.

Michael Dempsey is a senior associate at Bryan Cave Leighton Paisner. He can be contacted on 020 3400 4901 or This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] From Kaur v Russell [1973] 1 QB 336

[2] [2017] 1 WLR 1041

[3] Under CPR PD 2A paragraph 2, the ACO in London is open 10am-4.30pm, 10am-4pm for the other ACOs.