COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Sullivan
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
SIR PETER GIBSON
| Hardy and others
|- and -
|Pembrokeshire County Council
Pembrokeshire Coast National Park Authority
|Dragon LNG Limited
South Hook LNG Terminal Company Ltd
Health and Safety Executive
Milford Haven Port Authority
Mr T Straker QC, Mr S Tromans and Miss C Patry (instructed by Eversheds, Cardiff CF10 5BT) for the Respondents 1 & 2 and Interested Parties 1, 2, & 4.)
Hearing date: Friday 20th January 2006
Crown Copyright ©
Lord Justice Keene:
(A) South Hook Site
(1) A planning permission granted by the second defendant on 12th November 2003.
(2) A planning permission granted by the first defendant on 18th December 2003.
(3) A hazardous substances consent granted by the first defendant on 2nd April 2004.
(4) A hazardous substances consent granted by second defendant on 19th August 2004.
(B) Dragon Site
(1) A planning permission granted on 19th March 2003.
(2) A planning permission granted for an extension on 10th September 2004.
(3) A planning permission granted for an amended scheme on 10th September 2004.
(4) A hazardous substances consent granted on 7th December 2004.
"The claim form must be filed:
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose."
CPR 54.5(2) makes it clear that the parties may not extend this time limit by agreement between themselves, a provision which underlines the importance attached to the need to observe CPR 54.5(1). Indeed, the House of Lords in Caswell v. Dairy Produce Quota Tribunal for England and Wales  2 AC 738 held that, where the application for permission to seek judicial review is not made in compliance with those provisions, the delay is to be regarded as "undue delay" within section 31(6) of the Supreme Court Act 1981. That subsection reads as follows:
"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –
(a) leave for the making of the application; or
(b) any relief sought on the application
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."
"In these matters people must act with the utmost promptitude because so many third parties are affected by the decision and are entitled to act on it unless they have clear and prompt notice that the decision is challenged." – per Lord Donaldson, MR, page 61
The court there refused applications for judicial review because of a lack of promptness, even though the applications had been made within the three month period. The reasons for such an approach are clear from a large number of authorities. A public law decision by a public body in almost all cases affects the rights of parties other than the decision-maker and the applicant seeking to challenge such a decision. It is important that those parties, and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly. As it was put by Sir John Donaldson, MR, in R v. Monopolies and Mergers Commission, ex parte Argyll Group plc  1 WLR 763, at 774 H – 775 B:
"Good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary."
"… there is at the very least doubt whether the obligation to apply "promptly" is sufficiently certain to comply with European Community law and the Convention for the Protection of Human Rights and Fundamental Freedoms. It is a matter for consideration whether the requirement of promptitude, read with the three months limit, is not productive of unnecessary uncertainty and practical difficulty."
Lord Hope shared those doubts, whereas Lord Slynn expressly did not comment for the reason that the question did not arise in the case. The other two members of the House of Lords were silent on this topic. Nonetheless, while conceding that Lord Steyn and Lord Hope's comments were obiter, Mr Purchas places reliance on them.
"In so far as the applicants impugn the strict application of the promptness requirement in that it restricted their right of access to a court, the Court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their situation on the strength of administrative decisions."
It is to be observed that Lam does not appear to have been cited to the court in Burkett.
"those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and where interpretation and application are questions of practice." (paragraph 49).
"… It is, however, a useful reserve power in some cases, such as when an application made well within the three month period would cause immense practical difficulties. An illustration is R v. Rochdale Metropolitan Borough Council Ex p B, C, and K  Ed CR 117. Having referred to section 31(6), Mr David Pannick QC (sitting as a deputy judge of the High Court) stated, at p 120:
"In my judgment, it is absolutely essential that, if parents are to bring judicial review proceedings in relation to the allocation of places at secondary school for their children, the matter is heard and determined by a court, absent very exceptional circumstances, before the school term starts. This is for obvious reasons relating to the interests of the child concerned, the interests of the school, the interests of the other children at the affected school and, of course, the teachers at that school.""
Lord Steyn then added the comment:
"The good sense of this approach is manifest."
PREJUDICE TO THE THIRD PARTIES:
PUBLIC SAFETY AND THE ARTICLE 2 RIGHT TO LIFE:
"Everyone's right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
That imposes an obligation on states to put in place measures to safeguard people's lives against hazards. But the Strasbourg jurisprudence does not indicate that limitation periods cannot apply where complaints are brought under Article 2. Thus in Vo v. France  FCR 577 the Grand Chamber held that, assuming that Article 2 applied, it did not prevent a four year limitation period in French domestic law from being reasonable and applicable. It noted that there was a public interest in legal certainty and finality, and that a balance had to be struck.
"the court considers that there is good reason for extending the period …"
That specific provision has disappeared in Part 54 of the Civil Procedure Rules, but the general powers of the court to extend time, contained in CPR 3.1(2)(a) may be exercised in such case, and in Burkett (ante) Lord Steyn remarked that there was no material difference between the provisions of RSC Order 53, rule 4(1) and CPR 54.5(1). I respectfully agree. It has also been held by Judge J (as he was then) in R v. Warwickshire County Council ex parte Collymore  ELR 217 that the burden is on the applicant for judicial review, seeking such an extension, to show that there is good reason to extend time. That would seem to follow from the normal principles applicable when a party seeks an extension of time but has all the more force in judicial review cases, as was recognised in the Argyll Group case (see paragraph 10, ante).
"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage."
"the conclusion is that the identified and agreed means of navigation and operation more than adequately contain the risk associated with handling these vessels."
Sir Peter Gibson:
Lord Justice Chadwick: