Department of Justice Public Consultation: Proposal to Change the Time Limits to Bring a Judicial Review

24 August 2015

Author: Olivia O'Kane
Practice Area: Public and Administrative Law

The Department of Justice has proposed a change to the time limit for bringing proceedings for judicial review and has launched a public consultation on same, responses to which are due on 14th September.

Judicial review in brief

Judicial review is the legal procedure by which businesses, individuals or other interested parties can challenge the lawfulness of decisions or actions of public authorities or those exercising public functions. It is a remedy of last resort, in other words, it will be unavailable where there is a suitable alternative remedy.

The current time limit to apply for judicial review

To commence judicial review proceedings, applicants must first apply for leave to judicially review a decision of a public body. According to Order 53 of the Rules of the Court of Judicature (Northern Ireland) 1980, this should be done “promptly” and in any event within three months from the date on which the grounds for the decision first arose.

The ‘promptness’ requirement is independent of the three month longstop. Therefore, even if an application is brought within the three month period, if it is held that it was not made “promptly” then it will be time-barred and the application for leave will be refused.

The Meaning of “Promptly”

No definition of “promptly” is provided in legislation, rather, its meaning falls to the discretion of Judges who must decide each case on its individual circumstances. 

In 2010, the ambiguity surrounding the definition of “promptly” came to the fore in the context of proceedings arising from an alleged breach of public procurement rules in the European Court of Justice case of Uniplex (United Kingdom) Ltd v NHS Business Services Authority (C–406/08) (2010) PTSR 1377.

In that case, the claimant had submitted a tender for  a framework agreement to provide medical instruments to the Defendant. The claimant’s tender was unsuccessful and it brought an action alleging that the Defendant had breached public procurement laws. The Defendant submitted that the claimant’s action had not been commenced in time, having regard to the Public Contracts Regulations 2006 which required proceedings to review the award of public supply and works contracts to be brought “promptly and in any event within three months from the date when grounds for bringing the proceedings first arose.”

The European court held that the requirement to bring proceedings “promptly” was appraised in a discretionary manner was contrary to the EU principle of certainty. It was therefore held that the requirement was incompatible with the European Directive.

The courts in Northern Ireland have since applied the same reasoning where judicial reviews are mounted on EU grounds, with the result that the promptness requirement is effectively disapplied in such cases. This can be seen, for example,  in Musgrave Retail Partners (NI) Ltd’s Application (Leave stage) (2012) NIQB 109 and Mooreland and Owenvarragh Residents’ Association’s Application (2014) NIQB 130.

By contrast, however, judicial review applications which are mounted on domestic grounds continue to be judged in light of the promptness requirement. It is thus argued that this “two-track” system only increases the uncertainty for potential applicants in Northern Ireland, and may impede access to justice.

Public Consultation

It is in the context of the above discussion that the Department of Justice has proposed a change to the time limits for bringing judicial review, and has launched a public consultation on same.

In essence, it suggests that the promptness requirement should be removed, leaving only the three month time limit. It seeks views on the impact of this, and also seeks to identify if there are any categories of cases in which a shorter time limit would be appropriate.

The key consultation questions are as follows:

  1. Have you been deterred from bringing a judicial review because of uncertainty over the requirement to bring a case promptly? If so, please provide details.
  2. Do you agree that is appropriate to remove the requirement to bring a judicial review promptly as long as it is made within three months? Please give your reasons.
  3. What impact will the proposal to remove the requirement to bring a judicial review promptly have on you or your organisation?
  4. Do you agree with the proposal that the Courts power to extend the time limit in appropriate cases should be retained? Please give reasons.
  5. Do you agree that it would be inappropriate to remove the promptitude requirement for applications made on EU grounds (and under the Aarhus Convention) but retain it for applications made on domestic grounds? Please give reasons for your answer.
  6. Do you think the proposal to remove the promptly requirement will have an adverse impact on any particular categories of judicial review? If so, please explain your answer.
  7. Are there any types of case in which you consider a time limit shorter than three months might be appropriate? If so, please explain your answer.
  8. If a shorter time limit than three months were introduced for certain cases, would the courts power to allow an extension of time to bring an application be sufficient to ensure that access to justice was protected?

Conclusion

The Department of Justice has invited responses to its consultation paper by 5pm on 14 September 2015. You can access the consultation proposals and further information at

http://www.dojni.gov.uk/index/public-consultations/current-consultations/proposal-on-time-limits-for-judicial-review.htm

If you are interested in submitting a response, please direct this to:

Paul Moore Department of Justice Civil Justice Policy Division Access to Justice Directorate Massey House Stormont Estate Belfast BT4 3SX

Email: atojconsultation@dojni.x.gsi.gov.uk

Should you require any guidance on the judicial review process or any of the proposals raised by the consultation document, please contact Olivia O’Kane.

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