When is a JR a day out of time?

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.