Tested to the limit

The High Court recently considered whether "promptly" means "within 30 days" for non-EU judicial review, writes Andrew Johnson.

In R (on the application of Macrae) v Herefordshire DC (8 September 2011) (unreported), the Queen's Bench Division considered whether the requirement under CPR 54.5 that judicial review proceedings be brought "promptly", as well as within the three-month time limit, remained applicable despite the European Union decision in Uniplex (UK) Ltd v NHS Business Services Authority Case C-406/08 (2010) PTSR 1377 ECJ (3rd Chamber) that time limits had to be certain. The court decided that in a case which did not raise any issue of European Union law, the requirement remained applicable.

Uniplex and its application

In January 2010, in the case of Uniplex (UK) Limited v NHS Business Services Authority, the European Court of Justice (ECJ) handed down a judgment on a preliminary reference from the High Court on the legality of a limitation period in the Public Contracts Regulations 2006 which stated that proceedings for a breach of the EU procurement rules be brought "promptly and in any event within three months from the date when grounds for bringing the proceedings first arose". The ECJ held that the ability for a domestic court to use its discretion to dismiss proceedings on the grounds that they were not brought "promptly" breaches the principles of certainty and effectiveness and is not compatible with Article 1(1) of Directive 89/665 (the EU Remedies Directive). The ECJ held that it is for the national court to interpret the domestic provisions establishing the limitation period, as far as possible, in a manner which accords with Directive 89/665.

In February 2011, the Court of Appeal – [2011] EWCA Civ 156 – held that an action alleging breach of the public procurement rules was brought out of time. The Court of Appeal considered the application of the Uniplex case for the first time and held that the High Court had taken the correct approach, in accordance with the Uniplex judgment, of disapplying the "promptness requirement" in the Regulations. Despite this, by examining whether the action had been brought within three months of Sita's actual or constructive knowledge, the Court of Appeal decided unanimously that Sita had not been justified in waiting to bring its proceedings.

Following the decision in Uniplex, the UK procurement regulations needed modifying. These new regulations come into force on 1 October 2011 and, amongst other amendments, have the effect of changing the above time limits so that proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. In addition, the court may extend this 30-day limit where it considers that there is a good reason for doing so, but not so as to permit proceedings to be started more than three months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

The instant case

The claimant applied for permission to apply for judicial review of the grant by the defendant local authority of planning permission to build a dwelling in a rural area. The claimant had issued his claim two days before the end of the three-month time limit under CPR 54.5. The court considered that the first part of article 51 of the Charter of Fundamental Rights of the European Union, which requires Member States to "respect the rights, observe the principles and promote the application" of European Union law, was only concerned with rights under EU law, and the second part of article 51, which states that "this Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties" should not be read as creating a general obligation upon domestic courts.

The court held that the claim was brought out of time. The court referred to the decision in Lesoochranarske Zoskupenie VLK v Ministerstvo Zivotneho Prostredia Slovenskej Republiky (C-240/09) (2011) 2 CMLR 43 ECJ (Grand Chamber), which stated that in the absence of EU rules governing the matter, it was for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derived from EU law. Accordingly, EU law was only relevant in cases with an EU context and in this case, in the absence of any EU law issues and prior to the implementation of the new regulations, the requirement of "promptness" still applied.

Comment

There is now a dichotomy between the time limits for bringing a claim under the EU procurement rules and bringing a claim for judicial review in domestic law.  Both were formerly "promptly and in any event within three months". Following Uniplex the procedure for bringing a claim for breach of the EU procurement rules has been changed to 30 days from the date the claimant knew or ought to have known of the breach. The present case shows that this only applies to cases with an EU dimension and the "promptly" requirement in CPR 54.5 still applies to domestic judicial review claims.

Andrew Johnson is a director at Walker Morris. He can be contacted on 0113 283 2500 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. He regularly contributes articles and updates to reach…®, the free Walker Morris knowledge database and alerter service.