Public bodies in Northern Ireland could face more challenges under changes to grounds for judicial review, says expert

Out-Law Analysis | 18 Jan 2018 | 5:26 pm | 4 min. read

ANALYSIS: The removal of the reference to 'promptness' from the judicial review rules in Northern Ireland may seem subtle, but the change will have a real impact on decision-making in boardrooms across the region.

Promptness has been an important consideration to date, leaving potential challengers with a very short window to prepare for and bring a claim for judicial review. The Rules of the Court of Judicature (Northern Ireland) (Amendment) 2017 remove the reference to promptness with effect from 8 January, removing a disparity between EU and non-EU based applications that has existed since the landmark Uniplex European court judgment of January 2010.

One driver behind the change is that it will allow more opportunity to resolve disputes by other available means prior to leave for judicial review being sought. If this happens, some of the costs associated with judicial review proceedings can be avoided.

However, some leave applications that would otherwise have fallen under the 'promptness' requirement might now proceed to substantive hearing. Narrowing the court's discretion to refuse leave for judicial reviews could have a knock-on effect on court service resources.

At the same time, the practical impact for potential respondents may prove particularly problematic. For example, in the case of planning and procurement challenges, third parties who are in receipt of permissions and award of contracts will now face a full three-month wait during which a judicial review challenge may potentially be brought. These parties will no longer have the reassurance that they can try and have the challenge thrown out on promptness, and this will inevitably impact on their practical business considerations.

In the effort to achieve greater certainty, the balance of interests between applicant and respondent has clearly shifted towards the applicant.

Why the change?

Judicial review is an important mechanism through which the public and organisations can challenge the decisions of public bodies to ensure that they act lawfully and fairly. These decisions can be wide-ranging, from decisions about planning and procurement and licensing to decisions about children's educational needs.

The previous framework contained a requirement that any application for leave to apply for judicial review "shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made".

The practical effect of this was that applicants were faced with a very short window in which to:

  • decide whether to bring a challenge;
  • comply with the pre-action protocol for judicial review;
  • consider any other avenues through which to resolve the dispute;
  • draft the application.

However, EU case law introduced a pressure for change. In the Uniplex case, the Court of Justice of the European Union (CJEU) decided that the ability of the domestic courts to dismiss a case brought within three months on the basis that it was not brought "promptly" was contrary to the EU principle of certainty. It also decided that the requirement rendered it excessively difficult to exercise EU law rights, and therefore contravened the EU principle of effectiveness.

As a result, courts across the UK accepted that disregarding the requirement for promptness applied to all European directives. In Northern Ireland, the courts dealt with this by no longer enforcing the requirement to bring the case promptly in challenges brought on EU grounds.

How have the courts dealt with 'promptness'?

Decisions as to what amounts to promptness have, to date, been a matter of judicial discretion as there was no definition of promptness in the rules. This led to cases failing on promptness despite being brought within the three-month period. This was a particular issue in planning-based judicial review challenges, where delays in bringing a challenge can have a significant impact on third parties.

In Doyle's (Ellen) Application, a 2014 challenge for leave to apply for judicial review of a decision by a planning appeal commission (PAC), the challenge was brought precisely three months after the decision was issued. Mr Justice Treacy decided that the application was not brought promptly, and he did not consider that there was a good reason to extend the time. He said that the requirement to act promptly was "particularly important in cases such as the present where the absence of a prompt challenge will almost certainly cause hardship or prejudice and affect the interests of third parties".

In Mooreland and Owenvarragh Residents' Association's 2014 judicial review application, Mr Justice Horner also considered the issue of promptness. While he considered that there was "undue delay on the part of the applicant which has not been satisfactorily explained", he found that the application raised "issues of public importance and the applicant, comprising as it does a group of residents, should be given some latitude". However, he then had to consider "what is the appropriate relief to grant, given the delay in bringing the proceedings".

In a challenge brought in 2017 against the Department of Environment for Northern Ireland (Planning Service) by Patrick Heffron, Madam Justice Keegan considered three questions, established by previous case law:

  • is there a reasonable objective excuse for applying late?
  • what, if any, is the damage in terms of hardship or prejudice to third party rights and detriment to good administration which would occur if permission was granted now?
  • does the public interest require that the application should be permitted to proceed?

The case ultimately failed on two substantive grounds. However, Madam Justice Keegan said that he would have refused the application in any event, "due to lack of promptitude". This was a planning case, where "no objective reasonable excuse has been given for acting without promptitude", he said.

In Ards and North Down Borough Council and Gordon Duff's 2017 application, the planning authorities' application was made on 12 October 2016 and the individual's on 25 October 2016, just two days before expiry of the three months. Mr Justice Maguire agreed to extend time for the planning authority for six reasons carefully considered in the judgment, but refused to extend time for the individual as his delay was greater than that of the planning authority. In addition, the challenge by the individual, unlike that of the planning authority, could not be viewed as being representative of any public interest.

Catherine Mallon is a litigation expert at Pinsent Masons, the law firm behind Out-Law.com.