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The time limit for judicial review in environmental litigation: changes afoot?

CPR rule 54.5 states that a judicial review claim must be filed “promptly and in any event not later than three months of the date when grounds for making the claim first arose”. It had until recently been firmly established that this time limit runs from the date when grounds of challenge arose and not from the date when the claimant first learned of the decision under challenge: see eg. R v. Secretary of State for Transport, ex p Presvac Engineering Ltd (1991) 4 Admin L.R. 121. The requirement for “promptness” means that a claim brought within three months of the contested decision may nonetheless be out of time. A number of environmental JR claims have failed on this basis. A notable example is R (Finn-Kelcey) v. Milton Keynes Council [2009] Env. L.R. 4.

In light of two recent European cases, however, CPR r 54.5 is now open to question.

First, in January 2010 the ECJ in Case C-406/08 Uniplex held that the equivalent statutory time limit for challenges under the Public Contracts Regulations 2006 was contrary to EU law on the following grounds:

(a) 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

(b) 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 ECJ’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 environmental JR claims.

Then, last month, a similar position was taken by the Aarhus Convention Compliance Committee in its draft findings in respect of the Port of Tyne communication in which ClientEarth and others were the communicants.  At paras. 136-137 it observed:

“136. The Committee finds that the three months requirement specified in Civil Procedure 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 E&W 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 paragraphs 111-114). This may result in a claim for judicial review not being lodged promptly even if brought within the three months period. The Committee also considers that the courts in E&W, in exercising their judicial discretion, apply various moments at which a time may start to run, depending on the circumstances of the case (see paragraph 115). 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.

137. As was pointed out with regard to the costs of procedures (see paragraph 31 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 a clear minimum time limit within which a claim 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.”

See further http://www.unece.org/env/pp/compliance/C2008-33/DRF/C33DraftFindings.pdf

It seems only a matter of time before these decisions will be relied upon by a claimant in environmental JR proceedings faced with an assertion by the defendant that the claim was not brought promptly.