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The promptness requirement Uniplex and planning/environmental judicial review

The promptness requirement Uniplex and planning/environmental judicial review

Much excitement has resulted from the CJEU’s decision that the requirement to bring public procurement proceedings “promptly and in any event within three months” offends against the procurement legislation. The decision is in C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority concerned reg.47(7)(b) of the Public Contracts Regulations 2006 which applies the usual judicial review timescale to the bringing of proceedings by disappointed tenderers. Directive 89/66 requires effective review of procurement decisions. The decision clearly has important implications for applications for judicial review generally, at least where European Union law, is concerned.

The ECJ held that: “Article 1(1) of Directive 89/665, as amended by Directive 92/50, precludes a national provision, such as that at issue in the main proceedings, which allows a national court to dismiss, as being out of time, proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly.”

This was because: (i) the effectiveness of the public procurement regime can only be realised if the periods for bringing proceedings start to run from the date when the claimant knew, or ought to have known, of the alleged infringement; and (ii) the ability of the Court to dismiss a claim brought within 3 months on the basis that it was not brought ‘promptly’ was contrary to the principle of certainty, which is enshrined in EU law.

The CJEU’s reliance on general principles of EU law (effectiveness and legal certainty) in reaching these conclusions suggested that it might well take the same approach to CPR r 54.5 in the context of planning/environmental judicial review claims involving directly effective EU law.

The decision of the Aarhus Compliance Committee in the Port of Tyne case in September 2010 said this on the judicial review delay rules in environmental cases:

“138. The Committee finds that the three-month requirement specified in CPR rule 54.5 (1) is not as such problematic under the Convention, also in comparison with the time limits applicable in other Parties to the Convention. However, the Committee considers that the courts in England and Wales have considerable discretion in reducing the time limits by interpreting the requirement under the same provision that an application for a judicial review be filed “promptly” (see paras. 113–116). This may result in a claim for judicial review not being lodged promptly even if brought within the three-month period. The Committee also considers that the courts in England and Wales, in exercising their judicial discretion, apply various moments at which a time may start to run, depending on the circumstances of the case (see para. 117). The justification for discretion regarding time limits for judicial review, the Party concerned submits, is constituted by the public interest considerations which generally are at stake in such cases. While the Committee accepts that a balance needs to be assured between the interests at stake, it also considers that this approach entails significant uncertainty for the claimant. The Committee finds that in the interest of fairness and legal certainty it is necessary to (i) set a clear minimum time limit within which a claim should be brought, and (ii) time limits should start to run from the date on which a claimant knew, or ought to have known of the act, or omission, at stake.

139. As was pointed out with regard to the costs of procedures (see para. 134 above), the Party concerned cannot rely on judicial discretion of the courts to ensure that the rules for timing of judicial review applications meet the requirements of article 9, paragraph 4. On the contrary, reliance on such discretion has resulted in inadequate implementation of article 9, paragraph 4. The Committee finds that by failing to establish clear time limits within which claims may be brought and to set a clear and consistent point at which time starts to run, i.e., the date on which a claimant knew, or ought to have known of the act, or omission, at stake, the Party concerned has failed to comply with the requirement in article 9, paragraph 4, that procedures subject to article 9 be fair and equitable.”

A DEFRA letter in response to the Aarhus Compliance Committee said:

“Recommendation to review the rules regarding the timeframe for the bringing of applications for judicial review identified in paragraph 139 of the findings in case ACCC/C/2008/33 to ensure that the legislative measures involved are fair and equitable and amount to a clear and transparent framework.
The UK notes the Committee's findings that by failing to establish clear time limits within which claims may be brought in England and Wales and to set a clear and consistent point at which time starts to run, the UK fails to comply with the requirement of Article 9(4) of the Convention.  As indicated to the committee in our comments on the draft compliance committee findings, we are considering the issue of time limits for judicial review proceedings with a view to ensuring that we get the balance right between enabling environmental claims to be made and avoiding unnecessary delay. The Ministry of Justice has consulted with the Administrative Court judiciary on the issue of whether the term 'promptly' should be retained or whether the time limit should simply specify a maximum period and whether it would be appropriate to set the clock running when the applicant becomes aware or should have become aware of the decision to be challenged, and are now considering whether further public consultation would be appropriate.”

The effect of Uniplex has already been considered several times in the context of planning/environmental judicial reviews raising issues under the EIA Directive, Directive 85/337.

In R (Pampisford Estate Farms Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 131 (Admin), Coulson J considered as a claim for judicial review in respect of an allegedly deficient environmental statement had not been made promptly in accordance with CPR 54.5(1). The claimant relied on the opinion of Advocate General Kokott in Uniplex (the ECJ judgment not having been delivered) and Coulson J recognized (at [17]) that “on one view of the Advocate General’s opinion, there may be a clash between her remarks and CPR 54.5(1), the requirement for the claimant to act promptly”. However, he concluded (at [57]) that his view on promptness was “unaffected by the opinion in Uniplex, which cannot as a matter of EC law overturn on its own the statutory basis of CPR 54.5, and was not concerned with a situation in which a lack of promptness could have a significant adverse effect on numerous other parties”.

Similarly, in R (Carroll) v Westminster City Council & Anr [2010] EWHC 2019 (Admin) Michael Supperstone QC (sitting as a Deputy High Court Judge) held that “[t]he decision of the European Court of Justice in Uniplex (UK) Ltd v NHS Business Authority Case C - 406/08 is limited, in my view, to the construction and effects of Article 1 (1) of Directive 89/665 concerning public procurement”. He followed Pampisford even though by the time Carroll was decided the CJEU had also given judgment.

However, the recent case of R. (Buglife: the Invertebrate Conservation Trust) v Medway Council [2011] EWHC [746] (Admin) (HH Judge Anthony Thornton QC) is important. This was a judgment on a renewed application for permission to apply for judicial review which has been certified for the purposes of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, CA. Buglife failed filed their claim two days within the three-month time limit running from the date of the grant of outline permission challenged. Buglife contended that it has an unqualified entitlement to a period of up to three months before it must file its claim. It relies on the recent decision of the CJEU in Uniplex. The learned Judge said this:

“62. Medway and NGPH [the first interested party] contended that the Uniplex decision was confined to the relevant time limits imposed for proceedings associated with the Procurement Directive whereas these proceedings are associated with the EIA Directive. Moreover, the provision that was being challenged was one contained in the Regulations promulgated to give effect to the Procurement Directive in domestic law. In this case, the challenge is to a particular application of a general provision relating to all judicial review proceedings. Moreover, the Environment Directive only contained very a very general requirement on Member States to give effect to the directive in their respective domestic laws.

63. I cannot accept the limitation of the Uniplex decision contended for by Medway and NGPH. 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. That requirement is not now enforceable in English courts following the Uniplex decision.

64. In any event, I am satisfied on the facts of this unusual case that Buglife did file the claim promptly. I take account of the lack of full consultation with Buglife in the weeks prior to the granting of planning permission in that Buglife was not invited to participate in four-way discussion with NE, Medway and NGPH. During that period, the ES went through a process of rapid and repeated change and Buglife was then given inadequate notice of the EI that resulted from that change. This undue haste arose because of the perceived need for haste due to the constraints of the CIF funding27 and it left Buglife with a knowledge gap about the proposed development which it needed to fill in before being able to decide whether or not to initiate proceedings. Furthermore, Buglife was, from soon after the grant of outline permission, actively involved in assisting NGPH's consultants in devising a survey methodology. This was of considerable benefit to NGPH but it involved a drain on Buglife's limited technical resources.

65. Thus, taking account of Buglife's reliance on the applicability of the Uniplex decision, the accelerated ES process due to the decision to accept CIF funding, the assistance provided to NGPH, the limited prejudice shown to have resulted from the three-month delay and the public importance of this particular application, I exercise my discretion, if this is necessary, in concluding that these proceedings were started promptly even though that start was two days short of the permitted three-month period.”

Landmark Chambers featured in all these cases:
Tim Mould QC appeared on behalf of the Interested Party in Pampisford.
Sasha Blackmore appeared for the Claimant in Carroll.
Neil Cameron QC appeared for Medway Council and  Rupert Warren appeared for the First Interested Party in Buglife.