“Life is a series of natural and spontaneous changes.

Don’t resist them; that only creates sorrow.

Let things flow naturally forward in whatever way they like.”

― Lao Tzu

Last month, the High Court handed down judgment in the latest of a series of cases calling into question the standing of the Good Law Project to bring public law challenges: R (Good Law Project) v Secretary of State for Health and Social Care (Abingdon Health PLC Interested Party) [2022] EWHC 2468 (TCC) (“Abingdon”).

Where are we left on the issue of standing to bring JRs?

The Short Answer

Historically, the long-standing trend was for the Courts to take a permissive approach to standing in JR. The Courts now seem increasingly willing to give the issue of standing, and whether it amounts to an insurmountable barrier for a particular claimant, serious thought.

Consideration of whether a claimant has “sufficient interest” involves weighing (at least) the following factors:

• The merits of the underlying claims;
• The particular legislative or other context of the claim being made;
• How, if at all, the claimant might be affected by the unlawfulness alleged;
• The gravity of the allegations or findings made;
• Other possible claimants;
• The position of the actual claimant.

The Long Answer

Abingdon was a judicial review challenge brought by the Good Law Project (“GLP”) to decisions of the Department of Health and Social Care (“DHSC”) to enter into three Covid-related contracts with Abingdon Health PLC  for Covid antibody testing.

In 2020, in response to the Covid-19 pandemic, DHSC entered into public contracts with Abingdon to develop and potentially supply a lateral flow test which could be used by people at home to identify Covid-19 antibodies. It was thought at the time that if a link could be shown between the presence of antibodies and immunity to Covid-19, such tests could support the return to normal life. (As matters transpired, such a link was not found.)

The Court (Waksman J) dismissed GLP’s claim in its entirety and went on to find that GLP lacked standing to bring such claims.

The High Court turned to standing at [498] – [532] after dismissing each of the grounds, but Waksman J did comment that, to his mind, there would seem to be reasons why it would be sensible to deal with standing issues at the permission stage [503].

Standing was academic given the dismissal of the grounds [498], but the Courts are presently showing themselves willing – even eager – to engage with this issue, even when obiter.

Having set out the “sufficient interest” test from s31(3) of the Senior Courts Act 1981 [500], Waksman J summarised the relevant principles from the case law [501], explaining that the question of “sufficient interest” involves (at least) consideration of the following factors:

• The merits of the underlying claims;
• The particular legislative or other context of the claim being made;
• How, if at all, the claimant might be affected by the unlawfulness alleged;
• The gravity of the allegations or findings made;
• Other possible claimants;
• The position of the actual claimant.

There is no suggestion in the judgment that these factors are specific to the procurement context. Indeed, the fact that the procurement context was specifically considered within factor (2) suggests the most natural reading is that these factors apply across the full spectrum of public law challenges.

In relation to merits, Waksman J acknowledged that case law (eg World Development Movement Limited v SSFCA [1995] WLR 386) established that the merits are “an important, if not dominant, factor when considering standing” [506]. However, the Judge expressed some doubt that a lack of standing would always follow from a lack of merit [508].

The particular legal context of this claim was a challenge under the Public Contracts Regulations 2015 (“PCR”). GLP accepted that in this context the obvious and natural claimants would be economic operators [509]. Waksman J emphasised that it was not the case that a person other than an economic operator could never have standing, citing the obiter comments in Chandler v SSCSF [2009] EWCA Civ 1011. In Wylde v Waverly BC [2017] PTSR 1245 Dove J applied the test of whether the non-economic operator could “show that performance of the competitive tendering procedure … might have led to a different outcome that would have had a direct impact on him” [514].

Waksman J considered that, in relation to “effect on the claimant”, little more needed to be said other than it was clearly relevant. GLP was not affected any more than any other member of the public (as distinct from an affected economic operator) [516].

In relation to “gravity”, Waksman J did not want to exclude the possibility that a non-economic operator could establish this factor was present. In GLP v SSHSC [2021] EWHC 346, Chamberlain J gave weight to the fact that the alleged breaches related to contracts worth billions of pounds [518].

When considering “other possible claimants”, it is important in the procurement context not to “take too far” the question of whether there were economic operators who could theoretically bring a claim, but for whatever reason had not done so. The mere fact that economic operators had chosen not to litigate may be relevant but could not be decisive. Instead, the Court should focus on the effect on the actual claimant, or upon “gravity” [523].

In relation to the position of the Claimant, this was to be considered in the context of the case of a whole, but it is well-established that where claimants are mere “busybodies” or have an ulterior motive that can be sufficient to disqualify them [525].

By way of “other points”, the High Court noted:

• Standing is “acutely case-sensitive” and having standing in one claim will not automatically confer it in another [526].
• The mere fact that there is public interest in the matter cannot suffice. Nor can bringing a claim sincerely [527].
• Recent cases have “questioned” GLP’s standing [528] – [529], including:
• GLP v Minister for the Cabinet Office and Public First Ltd [2022] EWCA Civ 21 (“Public First”), in which the Court of Appeal stated that although it had not been appealed, “the question of standing for complete strangers to the procurement process with no commercial interest both under the Regulations and on public law grounds is a question ripe for review when it next arises”;
• GLP v Prime Minister and another [2022] EWHC 298 (Admin) where it was found GLP did not have standing in a JR outside the procurement context;
• GLP v Pharmaceuticals Direct [2022] EWCA Civ 355, in which the Court of Appeal repeated that the standing question was “ripe for review”
• It does not follow from the grant of a costs-capping order (“CCO”) that standing is conferred, despite it being part of the CCO test that the claim be public interest proceedings [530]

Applying the above principles to the fact of the present case, the High Court held that GLP, a stranger with no commercial interest, lacked standing in relation to each of the grounds considered in turn: it was not affected in any tangible way by the award of the public contracts [533]; the alleged breach was not ‘grave’ [536]; very limited weight was to be attached to GLP’s ‘experience and expertise’ in procurement litigation [541]; and it was not decisive that no economic operator had brought a claim [539].

Conclusion: Tips and Tricks

Claimants should:

• be mindful of the Courts’ increasing appetite to question would-be claimants’ standing; and
• where a choice between claimants is possible, consider carefully which claimant has the best prospects of establishing a “sufficient interest”; and
• consider having multiple claimants, where appropriate, in order to protect prospects on standing.

Defendants should:

• look out for where standing arguments can be raised, and raise them from the outset wherever appropriate (cf Abingdon where standing was only challenged by DHSC by way of an amendment after the Court of Appeal’s judgment in Public First);
• Consider inviting the Court to deal with standing at the permission stage. Waksman J commented that, whilst the case law does not always support this approach, it struck him as sensible to deal with standing at the outset since it goes to jurisdiction [503]. At that stage, as the merits have not been determined, some other of Waksman J’s factors determining standing may need to be conclusive of the question instead.

Imogen Proud is a barrister specialising in public law.

Imogen welcomes suggestions for future topics. To request that a topic be covered in a future instalment, please email your request to practicalpointers@gmail.com.

C.S. Lewis said: “You can never get a cup of tea large enough or a book long enough to suit me.”

It is conceivable that Mr Lewis was not referring to the new, 225-page Admin Court Guide, nor trying to maintain work/life balance as a public lawyer.

I’ve compared the new Admin Court Guide (seventh edition, October 2022, here) with its predecessor to see what’s new, just in case you don’t find the time this week.

The question

What are the 10 most important updates in the Admin Court Guide 2022?

The short answer: the top 3

1. Extending time for service of the Claim Form

Section 7.9 of the Guide has been updated in light of R (Good Law Project Ltd) v Secretary of State for Health and Social Care) [2022] EWCA Civ 355. This judgment clarified that CPR 7.6 does not apply to extensions of time for service of a judicial review claim form, but its principles should be followed on an application under CPR 3.1(2)(a) to extend time for service of a judicial review claim. Unless a claimant had taken all reasonable steps to comply with CPR 54.7 but had been unable to do so, time for service should not be extended.

This Good Law Project case makes for important reading as a cautionary tale.

2. New Remedies

Section 12.3 has been updated to reflect the new s. 29A(1) of the Senior Courts Act 1981, as inserted by s. 1 of the Judicial Review and Courts Act 2022.

It now clarifies that “[i]f proceedings commenced on or after 14 July 2022, a quashing order may include provision (a) for the quashing not to take effect until a date specified in the order, or (b) removing or limiting any retrospective effect to the quashing.”

See further section 12.3.7 for the factors to which the Court must have regard when deciding whether to make such an order.

3. Embargoed judgments

Section 11.6 now reflects the strongly-worded warning about embargoed judgments given in R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, [25]-[28].

In particular, we are now warned:

• • Legal representatives receiving draft judgments must be aware of the limited purposes for which the draft had been transmitted to them. It is not appropriate for draft judgments or summaries of them to be given to persons in clerks’ rooms or offices of barristers’ chambers. Drafting press releases is not a legitimate activity to undertake within the embargo.
  • If in doubt about whether a draft judgment may be disclosed to any person, it is best to seek the permission of the judge – CPR 40E PD para. 2.7.
  • In future, those who break embargos can expect to find themselves the subject of contempt proceedings.

The long answer: the rest of the top 10

4. Standing requirements and associations/ NGOs

Back in 2021, the Guide stated that “in some cases, a claimant whose legal rights and obligations are not affected (such as an association or non-governmental organisation), but has a particular expertise in the subject matter of the claim, may be considered to have sufficient standing if the claim is brought in the public interest.” (6.3.2.5)

To this has now been added the following, to reflect R (Good Law Project) v Prime Minister [2022] EWHC 298 (Admin) [53] – [59]: “An association or non-governmental organisation claiming standing on this basis will normally have to demonstrate genuine involvement in a specific subject area. The court will not necessarily accept that a corporate entity with very widely drawn objects will have standing to pursue claims in every case whose subject matter falls within those objects.” (6.3.2.4)

5. Permission stage reply

Back in 2021, the Admin Court Guide’s position was: “The CPR and Practice Directions do not make provision for the claimant to respond to the Acknowledgment of Service during the paper application process. Replies are rarely necessary and are not encouraged. The ACO will not delay consideration of permission on the basis that the claimant wishes to reply. Any reply received before a case is sent to a judge to consider permission will be put before the judge. Whether to take it into account it is a matter for the judge to decide.” (8.5.1)

The tone of the 2022 Guide is much more permissive: “If the claimant considers that there is something in the Acknowledgement of Service to which a reply is essential, a document should be drafted which is concise and confined to true reply points. This should be accompanied by an application for permission to file a reply and should be filed promptly. Any reply received before the case is sent to a judge to consider permission will be put before the judge. Whether to take it into account it is a matter for the judge to decide.” (8.5.1)

6. Right of reply at renewal hearing

Claimants’ right of reply at an oral renewal hearing has been given a boost. In 2021, the Guide said that claimants would “usually” be given a right to reply. Now the Guide promises at 9.6.3.4 that they will be “given the opportunity to reply briefly”.

7. Procedure where the Upper Tribunal is the defendant

This section has been updated in light of s. 2 of the Judicial Review and Courts Act 2022, which inserted s. 11A(1)-(4) into the Tribunals, Courts and Enforcement Act 2007.

9.7.2.2 now states that: “Where the Upper Tribunal’s decision was taken on or after 14 July 2022, parties should bear in mind in addition that the High Court’s judicial review jurisdiction is ousted except ‘so far as the decision involves or gives rise to any question as to whether— (a) the Upper Tribunal has or had a valid application before it under section 11(4)(b), (b) the Upper Tribunal is or was properly constituted for the purpose of dealing with the application, or (c) the Upper Tribunal is acting or has acted—(i) in bad faith, or (ii) in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.’”

8. Claimant’s skeleton moved closer to substantive hearing

10.1.4.4. of the 2022 Guide highlights that previous versions of the practice directions required skeleton arguments to be filed 21 working days before the date of the hearing. The new CPR 54A PD para 14.5 refers simply to “21 days before the date of the hearing”. This means “calendar days”: see CPR 2.8.

9. DGs and candour

The 2022 Guide contains the following considerations for defendants for the first time: “If all relevant matters have already been addressed in the Summary Grounds, a party may elect not to file separate Detailed Grounds and instead inform the court and the parties that the Summary Grounds are to stand as Detailed Grounds. However, before doing so, the party should consider carefully whether the material in the Summary Grounds is sufficient to discharge the duty of candour and cooperation with the court. In this regard, it is important to note that what is required to discharge that duty at the substantive stage may be more extensive than what is required before permission has been granted (see para 15.3.2 of this Guide).” (10.1.4.3)

10. Applications once a claim has commenced

The 2022 Guide clarifies a previously murky area, namely which form to use for applications once a claim is issued. The Guide states at 13.7.1 that “[a]n application for directions or an interim order can be made at any time after commencement of the claim.” It then clarifies at 13.7.2 “[t]o make such an application the application must be filed with the ACO on an application notice. If the application needs to be decided within seven days, it should be made on Form N463. Any other application should be made on Form N244”.

If you would like a PDF which compares the full text of the 2022 Guide with its predecessor, email iproud@monckton.com.

Imogen Proud is a barrister specialising in public law.

Imogen welcomes suggestions for future topics. To request that a topic be covered in a future instalment, please email your request to practicalpointers@gmail.com.

The Question

What checklist should you go through when settling a judicial review? Look no further…

The Short Answer

The consent order withdrawing the claim should tie up all loose ends in the litigation, so that unresolved issues do not bring the parties back to court.

Frequently forgotten points include:

• Specifying fixed deadlines for agreed actions
• Claimants seeking a payment on account
• The agreed statement justifying the consent order required by PD 54A 16.1

The Long Answer

1. Recitals

• The agreement(s) reached should be recorded in the recitals.
  • • Where it is agreed that a party will perform an action, it is a good idea to specify a fixed deadline. Providing that it will be done “by 4pm on date [x]” brings more certainty than “within 14 days” which varies depending upon when the order is sealed.
    • The recitals should record whether a party will use best endeavours to do X, or in fact do X.
    • Think about whether the party who has agreed to do something should inform the other party/parties when it is done, and if so how and by what deadline.
• Claimants’ representatives should consider the issue of protection for their client if a decision is to be re-taken which could prove to be adverse. For example, if a service is being provided pending a decision about entitlement, will that support remain in place, for e.g. 7 or 14 days, after an adverse decision to allow the Claimant time to make other arrangements?
• Where a decision is to be re-taken, Claimants’ representatives should consider whether the order should specify that new decision-makers take the decision, and whether or not they will see the previous decision when doing so.
• It may be appropriate to record any previous orders (date, judge, and what was ordered) made in the litigation which are relevant to what has been agreed. For example, if an order provides for a future deadline (e.g. written submissions), that order may need to be set aside in the body of the order. That would be ‘teed up’ by recording the fact of that order in the recitals.
• Think about whether there are any outstanding applications which have ongoing importance e.g. anonymity, which may need to be recorded in the recitals, so that they can be determined in the body of the order.
• If a hearing is listed, it can be helpful to record that fact in the recitals.
• If settlement follows a hearing at which any interim orders were made, which have not yet been recorded in a written order, it my be sensible to record those earlier orders in the recitals of the settlement order (for example if a costs order made by the judge deciding permission on the papers was set aside).

2. Body of the order

• The order should record that “the claim is hereby withdrawn”. If the Claimant requires permission to withdraw the claim (e.g. if they are a child) the order should record that “the Claimant has permission to withdraw the claim and the claim is hereby withdrawn”.
• Think about whether the agreement reached means that all grounds should be withdrawn or whether it is more appropriate that certain grounds be stayed pending further action being taken. If the latter, include a clear statement of the circumstances in which that stay will lift.
• Pause for thought before including declarations in the body of the order. The Court will rarely be willing to declare something in a consent order where it would ordinarily have needed to hear the evidence and submissions at a hearing in order to determine. The agreement recorded in the recitals is in most cases sufficient. For example, in an age dispute, where a local authority accepts a young person’s claimed age, the appropriate place to record that is in the recitals rather than a declaration from the Court in the body of an order.
• Any upcoming hearings should be vacated.
• Include provisions to determine any outstanding applications which would be of ongoing importance e.g. anonymity.
• Defendants should consider whether any interim relief orders fall to be discharged.
• In some cases, it may avoid future confusion for any upcoming deadlines to be set aside. This may be especially important where certain grounds are merely being stayed.

3. Costs

• The body of the order will need to record any agreement on costs in order for the litigation to be brought fully to an end. This will include: (a) which party (if any) is to pay costs, (b) the sum or percentage they have agreed to pay, (c) generally the obligation to pay will be limited to “reasonable” costs, (d) whether payment is on the standard or indemnity basis, and (e) provision for detailed assessment if costs are not agreed.
• If no agreement on costs can be reached, provision may alternatively be made for written submissions on costs.
• It is a good idea to include the time and date by which costs will be paid, with 14 or 21 days being a sensible starting point. (Claimants may want to specify the date on which this falls).
• A frequent mistake in legal aid claims is to omit the provision “there shall be detailed assessment of the Claimant’s publicly funded costs”.
• Successful claimants often forget that they may be entitled to ask for a payment on account under CPR 44.2(8). The order could record: “By 4pm on [date], the Defendant shall pay the Claimant’s solicitors the sum of £[X] + VAT, by way of a payment on account of the costs referred to at paragraph [X] above, pursuant to CPR 44.2(8).”
• Unsuccessful claimants should ensure the costs protection provision is included. For example, “The order for costs against the Claimant shall not be enforced without a determination by a costs judge of the amount which it is reasonable for him to pay in accordance with section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and Regulations 15 and 16 of the Civil Legal Aid (Costs) Regulations 2013.”

4. Statement of Matters Relied On

• Parties frequently overlook the requirement in PD 54A 16.1 to file an agreed statement with a draft final order, justifying that order. The requirement is:

“If, prior to judgment being given on a claim the parties agree the terms of a final order to be made disposing of the claim, the claimant shall file 3 copies of the proposed agreed order together with a short, agreed statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on. Both the draft order and the agreed statement shall be signed by all parties to the claim.”

• In practice, this is usually a 1 to 2-page document, summarising the nature of the JR and the key points that had been in issue, and setting out the principled or evidential basis upon which the agreement was reached. This is often drafted by counsel and signed by solicitors.
• When a JR settles shortly after the grant of permission, the Court will not approve an order unless the continuation fee has been paid (currently £770), which is payable within 7 days of permission.

Imogen Proud is a barrister specialising in public law, practising from Monckton Chambers. To contact her clerk Gemma Rawlinson.

The ‘no substantial difference’ test (“NSD Test”) has been a friend to every defendant, and the thorn in the side of every claimant, for seven years now.

Readers will be well aware that it empowers the court to refuse permission / relief where the outcome for the claimant would not have been substantially different absent the alleged unlawful conduct.

The Question

Does the NSD test need to be pleaded in order for the court to find that it applies?

The Short Answer

At the permission stage: no, but it’s a good idea for defendants to plead it where it applies.

In relation to relief: sometimes. If not pleaded, it will be relevant whether the evidence and submissions nonetheless addressed the issues relevant to the NSD Test. However, it is always a good idea for defendants to plead it where it applies.

The Long Answer

The NSD test was introduced into s.31 of the Senior Courts Act 1981 by s.84 of the Criminal Justice and Courts Act 2015.

Subsections (3C) and (3D) deal with the permission stage. They provide:

(3C) When considering whether to grant leave to make an application for judicial review, the High Court—

• (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and
• (b) must consider that question if the defendant asks it to do so.

(3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.

It is express that the court may consider the NSD test when it is unpleaded. Having said that, defendants are strongly incentivised to plead it in their Summary Grounds to ensure that the Court “must” rather than “may” consider it.

Subsection (2A) deals with relief. It provides:

(2A) The High Court—

• (a) must refuse to grant relief on an application for judicial review, and
• (b) may not make an award under subsection (4) on such an application,

if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

The statute does not make express, as it does in relation to the permission stage, whether or not it need be pleaded. The language, in particular “if it appears to the court”, may have been thought to suggest it need not be.

The Court of Appeal considered this last month in its decision refusing permission to appeal in the case of R (Good Law Project) v Secretary of State for Health and Social Care [2021] EWHC 346. This was a cluster of judicial reviews, heard together, which challenged the award of contracts for the supply of PPE at the start of the Covid-19 pandemic. The Good Law Project challenged, amongst other things, the Secretary of State’s use of a ‘High Priority Lane’ for triaging the high numbers of offers of PPE that were made. Offers were allocated to the ‘High Priority Lane’ if suppliers were referred by Ministers, MPs and senior officials including in the NHS.

Mrs Justice O’Farrell ruled that the High Priority Lane did breach applicable procurement law obligations of equal treatment and transparency. However, she held that the NSD Test applied because the impugned contracts were for offers of PPE which were in such high volumes and for items which were in such urgent demand that it was highly likely the contracts would have been awarded even absent allocation to the High Priority Lane.

The Good Law Project sought permission to appeal on several grounds, one of which included the argument that the NSD Test had not been pleaded in relation to the High Priority Lane. Nor was it argued by the Defendant orally or in his skeleton in relation to this point.

Lord Justice Coulson refused permission to appeal on 29 April 2022 (CA/2022/000414). In relation to the NSD pleading point, he reasoned:

“The first argument […] is that reliance on s.31(2A) was not pleaded by the respondent. I accept that, in other circumstances, that might have given rise to a major difficulty for the respondent. But on a proper analysis of the material, it does not do so here.

[…] [R]egardless of the pleading, the evidence and the submissions made during the trial addressed the issue as to whether the High Priority Lane made any difference to the outcome. In other words, the issue was regarded by both sides as important, and treated by them as such. There is no suggestion that there was or could have been any prejudice as a result of the respondent’s failure to plead s. 31(2A) expressly.”

It is also clear from Coulson LJ’s Order that where the complaint is that the defendant relied upon s.31(2A) without pleading it, the proper time to take the pleading point is before the trial judge; “it is too late to raise such a point for the first time on an application for PTA”.

Conclusion: Tips and Tricks

Defendants should:

• plead the NSD Test, both at the Summary Grounds and Detailed Grounds stage, whenever it has application to a case.

Claimants should:

• where the NSD Test is pleaded in Summary Grounds, consider answering it in a Reply; and
• where the NSD Test is not pleaded, but a defendant later seeks to rely upon it, consider whether a pleading point could be taken on the facts of the case. This may be the case where prejudice was caused to the claimant because it was not pleaded. Further, where the NSD Test is not pleaded, claimants should pay careful attention to whether sufficient material addressing the test is nonetheless before the court.

Imogen Proud is a barrister specialising in public law. She was instructed by the Secretary of State for Health and Social Care in R (Good Law Project) v Secretary of State for Health and Social Care [2021] EWHC 346.

The Question

Given recent judgments castigating misuse of the urgent procedure, just how nervous should Admin Court users now be when considering using Form N463?

The Short Answer

Form N463 can be used with confidence:

• before issuing, at the time of issuing, or within extant proceedings;
• where consideration is reasonably required within 7 days; and
• where what is sought is either (a) interim relief preventing a defendant from doing something with irreparable consequences; or (b) expedition of the next stage in proceedings (generally the AOS) to hours/days.

Form N463 should not be used:

• where consideration within 7 days cannot be justified; or
• if an abridged timeframe sought is weeks rather than hours/days (eg at the time of filing to seek only a direction that permission be decided by a certain date, without abridging time for the AOS).

In the above two cases, what should be used is (a) section 8 of the Claim Form, with the application highlighted in the covering email to the Administrative Court Office, or else (b) an N244.

It is essential to:

• complete all sections of Form N263 in full, without relying on cross-references to other documents; and
• comply with the duty of candour by including, prominently, all relevant information which undermines the application.

The Long Answer

Key resources

Claimants considering using the urgent procedure should refer to:

1. The new Form N463 (updated February 2022) – here
2. Practice Direction 54B (introduced in May 2021) – here
3. The Administrative Court Guide 2021 (the “Guide”), section 17 – here
4. The recent cases: R (DVP & Others) v SSHD [2021] EWHC 606 (Admin) – here and In re An Application for Judicial Review [2021] EWHC 1895 (Admin) – here

When to use Form N463

Form N463 is generally filed with a Claim Form (Guide §17.4.1). In exceptionally urgent cases it can be filed with an N244 prior to issuing (Guide §17.4.2 with §16.2). The Administrative Court Office confirmed to the Administrative Law Bar Association when publicising the new Form N463 that it can also be used within existing proceedings.

R (DVP) v SSHD

This was a 2021 Divisional Court judgment following a reference under the Hamid jurisdiction. The underlying claims were six different JR challenges to the use of a former military facility to accommodate asylum seekers during the pandemic. The Claimants used Form N463 to apply for expedition and interim relief, including an urgent health review of those in the camp and the transfer out of those with urgent health needs. Consideration within 72 hours was sought. Swift J refused the application and referred the case to the Divisional Court under the Hamid procedure.

The Hamid procedure is a facet of the court’s jurisdiction to regulate its own procedures and to enforce the overriding duties owed to it by legal professionals: see R (Hamid) Secretary of State for Home Department [2012] EWHC 3070 (Admin). Although the Hamid jurisdiction originated in the field of immigration, it is not confined to immigration or to public law claims. A solicitor or counsel may be asked to show cause why their conduct should not be considered for referral to the relevant regulatory body or why the representative should not be admonished. (See further section 18 of the Guide.)

In DVP, the lead solicitor with responsibility for the six claims and the Director of Compliance at Duncan Lewis LLP were directed to appear before the Divisional Court to address the concerns identified in Swift J’s order and to give reasons why they should not be reported to the SRA.

There had been “significant abuse” of the urgent procedure (§57) because the Claimants had failed to state that they themselves had already been transferred out of the facility. This breached the duty of candour and meant the application was not urgent. There had been significant delay in making the application. Duncan Lewis LLP were not instructed by others at the facility on whose behalf they purported to make the applications. Further, the Claimants had taken umbrage with the Defendant’s written submissions in answer to the urgent application, when it was only these submissions that informed the Court that the Claimants had already left the facility. The lawyers’ acceptance of responsibility and apologies were sufficient to avoid referral to the regulator.

The Divisional Court gave the following guidance:

• Prohibition of abuse: It is of the utmost importance that the limited resource of the urgent procedure is not abused, and any such abuse will be “met with appropriate sanction” (§7). Those using the urgent procedure must adhere to the rules “to the letter” (§7).
• Duty of Candour: “The duty of candour in this context, means that the claimant must disclose any relevant information or material fact which either supports or undermines his case. […] The information the claimant puts before the Administrative Court in support of an urgent application must be presented in a fair and even-handed manner, and in a way which is not designed simply to promote his own case.” (§9) The court will set aside an order if there has been a breach of the applicant’s duty of candour (§10). Matters central to the application should be “’front and centre’ on the face of the application” (§51).
• Notice: Only an exceptionally urgent application may be made without any notice to the defendant at all, otherwise (limited) notice is required (§9). The Court will generally make an order allowing the defendant a short time to file written submissions, or list the matter for a hearing, unless irreversible prejudice would be caused to the claimant in the meanwhile (§19). The Court is always assisted by being informed by the Defendant of its position (§47).
• Form N463: All sections must be completed. Answers may not merely cross-refer to other documents (§16). Form N463s should be reviewed before they are filed (§64).
• Sanctions: Sanctions for abuse of the procedure include adverse or wasted costs orders, use of the Hamid procedure, and referring professional representatives to their professional regulator for consideration of disciplinary action (§11).

Re an Application for Judicial Review

This was a second 2021 Divisional Court judgment following a referral under the Hamid jurisdiction, within the context of a JR challenge to the vires of certain Brexit-related regulations. Form N463 was used to apply for an expedited timetable including permission to file a Reply and a permission decision by a certain date. Consideration was requested within 48 hours, in circumstances where the order sought would not be effective for another four weeks (§3). Swift J refused the application and an order of Tipples J required leading counsel to attend court to address the concerns raised.

Lewis LJ held that there was no justification for use of the urgent procedure since the Claimant was not seeking interim relief and was not seeking to abridge time for the AOS. The application should have been made in the Claim Form. Use of Form N463 was a “serious error of judgment” (§9). Leading counsel was not referred to the BSB as this was an error made in good faith and because counsel apologised and confirmed he would do differently in future (§10).

The Divisional Court explained that, in relation to expedition, Form N463 was to be used only where abridgement of the time for an AOS to hours or days is sought. Where 21 days is to be allowed for an AOS, but abridged time for a permission decision is sought, “[t]he appropriate place for that application was in section 8 of the N461, together with a covering letter or email to the Court Office, drawing attention to the need to determine those parts of the application form before the end of the 21-day period for the filing of an acknowledgement of service. If counsel had had any real doubt about whether the Administrative Court Office would take steps to ensure that the papers were put before a judge within that timescale, he could have made an application on notice using Form N244” (§26).

Conclusion: Tips and Tricks

Claimants should:

• always use Form N463 when making an urgent application, completing all mandatory fields (PD 54B §1.1, DVP at §14)
• attach a draft Order (Form N243, DVP at §15)
• file an indexed and paginated application bundle containing Form N463 and any other material required by PD 54B (PD 54B §1.3) (this will often be the Permission Bundle)
• serve the application bundle on the Defendant and any IP before the application is filed with court where possible, or else at the same time that the application is filed (PD 54B §1.7)
• advise the Defendant and IP in advance of the nature of the application and the fact that they may make representations (PD 54B §1.7)
• if the representative was instructed late, explain why (Guide §17.3.1.1)
• if the form is filed only shortly before the end of the working day, explain why it was not filed earlier in the day (Guide §17.3.1.1)
• where the application is for interim relief: (a) take reasonable steps to investigate matters material to the investigation; (b) file a witness statement in support; and (c) identify all matters undermining as well as supporting the application (PD 54B §§2.2-2.4). Following DVP, Claimants should be particularly mindful of the duty of candour, displaying adverse information prominently.
• where the application is for expedition, include a statement of the position of the defendant and any IP or else explain the steps taken to ascertain that position (PD 54B §3.1)
• in London, file the application by email between 10am and 4:30pm on working days to immediates@administrativecourtoffice.justice.gov.uk; outside London, file at the relevant Admin Court Office as set out in PD 54C (PD 54B §§1.4-1.5)
• in the event of inadvertent abuse of the procedure, accept responsibility and apologise to the court to manage the risk of referral to a professional regulator (DVP at §81)

Claimants should not:

• omit or bury material which undermines rather than supports an application for interim relief (DVP at §9)
• use Form N463 where neither interim relief nor abridgement of the time for the next step in proceedings to hours/days is sought (In re An Application for Judicial Review at §26)
• leave mandatory sections of the N243 blank or merely cross-refer to other documents (DVP at §16)

Defendants should:

• inform the Claimant of its position when given notice of an urgent application, or inform the Court of its position on an application without notice (DVP at §47)

It is a truth universally acknowledged that the time limit for filing a JR claim form is “(a) promptly and (b) in any event not later than 3 months after the grounds to make the claim first arose” (CPR 54.5(1)).

As all Admin Court users will be aware, “complying with the time limits for commencing judicial review proceedings is always important”: R (EA) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin) at [27] per Dame Victoria Sharp P.

 But when is the last day for this all-important compliance?

The question

Let’s use as an example an impugned decision taken on 1 January.  Are you in time if you file on 1 April? Or must you file by 31 March?

The short answer

It is highly likely that the “corresponding date rule” applies, so a JR of a decision taken on 1 January must be filed on or before 1 April.

The long answer

(a)   What is the Corresponding Date Rule?

Put simply, the “corresponding date rule” says that “3 months after” 1 January is 1 April.

The corresponding date rule was explained by Lord Diplock in Dodds v Walker [1981] 1 WLR 1027. The case concerned the time limit imposed by s29(3) of the Landlord and Tenant Act 1954 that an application be made “not less than two nor more than four months after the giving of the landlord’s notice”. The Landlord’s notice was given on 30 September of the relevant year, and the application made on 31 January the following year. The House of Lords held that this was a day out of time.

Explaining the corresponding date rule, Lord Diplock reasoned: “It is also clear under a rule that has been consistently applied by the courts since Lester v Garland (1808) 15 Ves Jun 248 , that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, ie the day of that month that bears the same number as the day of the earlier month on which the notice was given. The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month.”

(b)   When does the corresponding date rule apply?

This was the issue in R (Zaporozhchenko) v City of Westminster Magistrates’ Court [2011] EWHC 34 (Admin). The question was whether an extradition order had been made within the time limit specified by sections 99 and 102 of the Extradition Act 2003, namely within a period of two months starting with the date on which the relevant cases were sent to the Home Secretary by the magistrates’ court. The magistrates’ court sent the cases on 3 September and the Home Secretary made orders on 3 November. The Divisional Court held that the corresponding date rule depended for its application on the exclusion of the day of the occurrence of the specified event. In this case, the relevant sections of the Extradition Act meant that the day of the specified event (the magistrates’ court sending the cases) was included in the calculation so the corresponding date rule did not apply.

By contrast, in Zoan v Rouamba [2000] 1 W.L.R. 1509 (“Zoan”), the Court of Appeal held that in counting time 12 months “after” or “from” the date of an agreement, the date of the agreement would not be included in the time period being counted.

Similarly, in R (Bednash) v Westminster City Council [2014] EWHC 2160 (Admin) (“Bednash”) it fell to the Court to consider the meaning of the period “ending … three months after that date” within the meaning of s47 of the Licensing Act 2003. It was held that s47 excluded from the calculation of the time period the day on which the initial event occurred (a notice was received). It was held that 3 months after 2 August was 2 November (ie the corresponding date rule would apply).

Drawing the threads from the cases together, the word “after” has been taken to mean that the day of the occurrence of the specified event is to be excluded from the calculation, whereas phrases such as “within X months from” mean that day is to be included.

(c)   Does the rule apply to JR time limits?

The question which follows is whether, when calculating the JR time limit, the date of the impugned decision is included or excluded. It seems likely it is excluded, in particular due to the word “after” in CPR 54.4(1).

The detail is as follows:

• The commentary in the White Book on this point is clear but briefly reasoned. At 54.5.1, Zoan and Bednash are cited in support of the application of the corresponding date rule to JR time limits. In other words, the appearance of the word “after” is taken as determinative that the corresponding date rule applies.
• Perhaps in some tension with this, the Administrative Court Guide 2021 states that “the time limit begins to run from the date the decision to be challenged was made” (at 6.4.2.2). This conflict with Zoan and Bednash is perhaps only apparent. The Admin Court Guide in this paragraph is concerned with the issue that time runs from the date of the decision as opposed to running from the claimant’s date of knowledge. The Guide is not concerned in that paragraph with whether the date of the decision is included or excluded from the 3 months. (The White Book commentary itself slips into similar language to the Admin Court Guide in other places when concerned with other points.)
• Some rulings have gone the other way, taking the view – in our example – that 1 April is out of time. For example, in 2002, the Admin Court considered and tentatively rejected an argument that time ran from the day after the decision in the permission decision in Crichton v Wellingborough BC [2002] EWHC 2988 (Admin) (“Crichton”). The claimants reasoned by analogy from the meaning of “three clear days” in CPR Part 2 which excludes the day of the decision itself (at [50]). The defendant submitted that this had no application to the computation of three months (at [51]). Gibbs J held that “the interpretation of CPR Pt 2 probably does not apply to the three month time limit” but added that “the contrary is arguable”. In other words, the deadline to challenge a decision of 1 January is 31 March. However, we should note in relation to Crichton: (a) the Court was hesitant in its conclusion; (b) this was a permission decision, and  (c) the Court did not consider Zoan.

(d)   Extending time

An argument that filing was a day late is likely to be met with (or anticipated by) an application by the claimant to extend time by a day. Such an application was made in Crichton, and was granted by Gibbs J, who reasoned that “it would be wrong to shut out the claimants on the basis of an arguable point simply because they are one day late” (at [57]).

The JR filing time limit may not be extended by an agreement between the parties (CPR 54.5(2)). It can be extended by the Court in its discretion (under CPR 3.1(2)(a) powers). Ideally an application to extend time would be made when the claim is filed (in Section 8 of the Claim Form, and perhaps also in the Statement of Facts and Grounds). The application will be considered at the same time as permission (Admin Court Guide 2021 at 6.4.4.1). A prior agreement not to take a time point can be relevant to the exercise of the Court’s discretion to grant an extension of time.

If the application is made after the deadline, defendants could argue the test is relief from sanctions, applying Mitchell / Denton. In R (Hysaj) v SSHD [2015] 1 WLR 2472, the Court of Appeal held that this was the correct approach to extensions of time for filing an appellant’s notice (see [36]). In R (AK) v Entry Clearance Office [2021] EWCA Civ 1038 (“AK”), it was argued that the same approach should be applied to applications to extend time for bringing a JR. The Court of Appeal did not find it necessary to decide this issue (at [48]).

(e)   Interaction with need for promptness

Where a challenge to a decision is filed on the “corresponding date”, irrespective of whether this is within 3 months, this may fuel an argument that the claim has not been brought promptly. Pursuant to s31(6) of the Senior Courts Act 1981, the Admin Court may refuse to grant permission or relief where there has been undue delay, where the granting of relief would cause substantial hardship or prejudice to any person or detriment to good administration.

Conclusion: tips and tricks

Claimants should:

• aim to file at the latest a day before the ‘corresponding date’ (ie by 31 March in our example). This is a watertight way for claimants to avoid accusations of being outside the 3 months (but does not guarantee that the claim was brought “promptly”);
• where this is not possible, try to get the defendant’s agreement not to take a time point. If there is a concern that the defendant will take a time point when filing on the ‘corresponding date’, consider a ‘belt and braces’ approach, making the primary submission that the claim is within the 3 months and as a fall-back position making an application for an one-day extension of time; and
• always make an application for an extension of time where filing is after the ‘corresponding date’.

Defendants should:

• consider whether a claim brought on the ‘corresponding date’ nonetheless was not brought promptly;
• where a claim is filed a day after the ‘corresponding date’, argue that the claim is a day out of time, and consider arguing that the test is relief from sanctions in those circumstances.