England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Philip Mott QC
[2012] EWHC 3585 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th July 2013

Lord Justice Beatson:

Introduction

1. This is an appeal by the Secretary of State for Communities and Local Government ("the Secretary of State") against the Order dated 12 December 2012 of Mr Philip Mott QC sitting as a Deputy High Court Judge in the Administrative Court. The deputy judge permitted the claimants, Sandra San Vicente and Gerald Carden, to amend the grounds of an in time application pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash the grant of outline planning permission where the application to amend was made after the expiry of the six week period within which section 288(3) requires such applications to be brought. The question before this court concerns the power of the court to permit such an amendment. In particular, does CPR Rule 17.4, which deals with "amendments to statements of case after the end of a relevant limitation period" (emphasis added) apply either directly or by analogy? The substantive hearing was fixed for a final hearing on 1 July. To assist the parties, at the conclusion of the hearing on 18 June, my Lord, Lord Justice Lloyd stated that the appeal would be dismissed. I now give my reasons for this conclusion.
2. On 12 July 2012, following a hearing, an Inspector appointed by the Secretary of State granted Taylor Wimpey UK Ltd ("Taylor Wimpey"), the third defendant, outline planning permission to construct up to 100 houses on a field on the edge of Great Dunmow in Essex. On 22 August the claimants, then acting in person, issued their application challenging the decision. The six week period required by section 288(3) of the 1990 Act expired on 23 August 2012.
3. On 19 October, almost two months after these proceedings were issued and the expiry of the six week period, Taylor Wimpey applied for summary judgment. The claimants by then had instructed their present solicitors. It was common ground before the deputy judge (see judgment, [4(iii)]) that, because the grounds in the claimants' original application essentially challenged the merits of the decision, it was doomed to fail. As a result, on 8 November, some two and a half months after the expiry of the six week period, the claimants applied inter alia to amend the claim by substituting new grounds. One of the new grounds was that the decision was vitiated by procedural irregularity.
4. In the order that is the subject of this appeal, the deputy judge granted the claimants permission to substitute the procedural irregularity ground for the original grounds. Mr Kimblin, on behalf of the Secretary of State, submitted that in so ordering the deputy judge fell into error and acted outside the scope of his discretion. I summarise Mr Kimblin's submissions at [26] – [29] and [33] – [34] below. At this stage it suffices to say that he accepted that the judge had jurisdiction to allow the amendment. He argued that the judge failed to give the proper weight to the six weeks limitation period in section 288(3) of the 1990 Act or to apply or have regard to Rule 17.4, the relevant provision in CPR Part 17.

The 1990 Act and the CPR:

5. Section 288 of the 1990 Act provides that any person who is aggrieved by any order or by any action on the part of the Secretary of State to which the section applies and wishes to question the validity of the order or action on the grounds that it is not within the powers of the 1990 Act, or that any of the relevant requirements have not been complied with, may apply to the High Court within six weeks from the date on which the order is confirmed or the action is taken.
6. The relevant Part of the Civil Procedure Rules is Part 17. The material provisions in this appeal are:

"17.1 –

(2) If his statement of case has been served, a party may amend it only –

(a) with the written consent of all the other parties; or

(b) with the permission of the court

17.3 –

(2) The power of the court to give permission under this rule is subject to –

(c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period).

17.4 –

(1) This rule applies where –

(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and

(b) a period of limitation has expired under –

(i) the Limitation Act 1980; or

(ii) the Foreign Limitation Periods Act 1984 ; or

(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.

(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."

7. The limitation in Rule 17.4(2) derives from and is in similar language to section 35(5) of the Limitation Act 1980. The predecessor of Rule 17.4 in the Rules of the Supreme Court was Order 20, rule 5. Order 20, rule 5 also dealt with changes of parties, now dealt with in Part 19. Rule 19.5 is concerned with adding or substituting parties after the end of a relevant limitation period. It was accepted before the deputy judge and before us that the wording of Rule 19.5(1) is, in material respects, identical to the wording of Rule 17.4(1) and that the reasoning in cases on it applies to the position under Rule 17.4. A significant part of the submissions before us related to two such decisions, Parsons v George [2004] EWCA Civ 912, [2004] 1 WLR 3264, and Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566, [2005] 2 P & C R 5.
8. These provisions reflect the way the framers of the Rules have struck the balance between the competing interests of claimants and defendants in different circumstances. The way this has been done and the changes over time were explained by Dyson LJ (as he then was) in Parsons v George [2004] EWCA Civ 912, [2004] 1 WLR 3264. His discussion, albeit in the context of the operation of Part 19 in a private law dispute between a landlord and a tenant, and the effect of the Civil Procedure Rules on jurisdictions previously enjoyed by the court, is illuminating.

Factual and procedural background:

9. The material facts are set out at [1] – [2], [17] – [43] of the judgment below. It is only necessary to summarise them here. Taylor Wimpey's application for outline planning permission was refused by the second defendant, Uttlesford District Council ("the Council") on 24 October 2011. Taylor Wimpey appealed, and the Secretary of State decided the appeal would be determined by an Inspector conducting a hearing rather than a full inquiry.
10. The hearing opened on 11 April 2012 as scheduled. After some oral evidence on behalf of both parties had been given to the Inspector, it became clear that the reason there were no objections from local residents was because the Council had not given proper notice of the hearing. The Inspector asked the Council (which was the second defendant below but has taken no part in this appeal) to invite the submission of further comments. After a number of comments were submitted, it was decided that there should be a further hearing on 7 June and notice of this was sent to interested parties.
11. There was email correspondence between Taylor Wimpey and the Planning Inspectorate about the parameters for the new hearing. Taylor Wimpey asked the Inspector about a statement in a letter from the Planning Inspectorate dated 4 May 2012 which was emailed to those involved which stated that the intention was "to enable any interested parties to be able to listen to all the evidence and to be given an opportunity to comment at the Hearing". It asked the Planning Inspectorate to confirm that "the oral evidence presented by both parties at the original hearing remains part of the evidence on which he will take his decision" (all emphasis added).
12. The Planning Inspectorate response was dated 18 May 2012. It stated that, while "in principle, it will be necessary to re-run the hearing", "the procedure to be adopted will be dependent upon the nature and extent of public attendance", "the Inspector will discuss the details with all those present at the start of the resumed event", "the main parties should rely on the case provided in their statements, and "the Inspector will not expect new material to be put forward".
13. When the hearing reopened on 7 June, the agenda was the same as that produced for the first hearing. The claimants and Councillor Ranger, who had been present at the earlier hearing, stated that their impression at the second hearing was that the Inspector had already made up his mind. This was because the Inspector stated the agenda was identical to that at the hearing in April, and that each item had been examined in great detail. It was also because, (a) in the light of this, he invited parties to state their case briefly, (b) the other parties summarised what had occurred at the previous hearing, and (c) much time was spent discussing issues which assumed the grant of permission.
14. The Inspector issued his decision letter allowing Taylor Wimpey's appeal and granting outline planning permission on 20 June 2012. The six week period under section 288(3) did not, however, begin to run then because spelling errors in the decision letter were corrected and sent to the claimants under cover of a letter dated 12 July 2012.
15. In the challenge the claimants issued on 22 August 2012, they gave as the details of their claim that the Inspector: (a) made an incorrect decision to allow outline planning permission, (b) misled himself on the definition applied to sustainability, and (c) was wrong to identify a sufficient benefit in housing to compensate for the harm of building on the countryside and outside development limits. These were, essentially, challenges to the merits. They did not identify an error of law or a defect in the procedure adopted.
16. On 5 September 2012, by then legally represented, the claimants lodged an application for a Protective Costs Order ("a PCO"). On 11 October, Collins J required them to supply further information in connection with that application. I have referred to Taylor Wimpey's application, dated 19 October 2012 for summary judgment. That application also sought the dismissal of the application for a PCO. On 8 November 2012, when the claimants applied to amend the grounds of their challenge under section 288 by substituting new grounds, they also applied to amend the application for a PCO.
17. I have referred to the contention that the Secretary of State's Inspector failed to ensure that all parties were notified of the hearing in accordance with the Town and Country Planning (Hearings Procedure) (England) Rules 2000, SI 2000 No. 1626, and subsequently failed to restart the proceedings. The two other new grounds were allegations of failure (a) to comply with the requirements of the Environmental Impact Assessment Regulations 2011, SI 2011 No. 1824, and (b) to consider the draft local plan. The last of these was not pursued. The judge granted permission to amend to raise the procedural irregularity ground, but refused permission to raise the EIA screening point. As to the application for a PCO, the judge imposed a limit on the claimants' liability of £10,000 with a reciprocal costs cap of £35,000 including VAT. On 9 May 2013 Sullivan LJ refused a renewed application for permission to pursue the EIA ground and applications by the claimants to vary the PCO by lowering the limit and raising the cap.

The decision below:

18. It is only necessary to summarise the judge's reasoning in respect of the application to amend the claim.
19. The judge considered (judgment, [10]) that he was bound by the decision of this court in Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566, [2005] 2 P & C R 78 to hold that CPR Rule 17.4 does not apply because the preconditions in Rule 17.4(1) are not met. The six week period imposed by section 288(3) of the 1990 Act is neither a period of limitation under the Limitation Act 1980 nor is it one under "any other enactment which allows such an amendment, or under which such an amendment is allowed". The decision in Eco-Energy's case did not concern CPR Part 17, but CPR Part 19, which applies to a change of parties after the end of a relevant limitation period. I have stated that it was accepted before the judge and before us that the reasoning in decisions on Rule 19.5 applies to the position under Rule 17.4.
20. The judge stated (judgment, [14]) that the consequence was that he was required to decide the application to amend under CPR Rule 17.1(2)(b), under which his discretion was wide and there is no specific guidance. He then turned to consider the merits threshold which (judgment, [15]) he stated was not a high one, but needed careful consideration in a case where substitution rather than addition of grounds was sought. It was common ground before him that the threshold was effectively the same as that on an application for summary judgment under CPR Part 24. The case must be better than merely arguable, but the court must not conduct a mini-trial, and claimants (and in this context applicants to amend) do not have to show that their case will "probably succeed" at trial.
21. The judge first considered what the claimants alleged constituted procedural irregularity and what the defendants' response was to it. The defendants submitted that the process was informal and not an adversarial trial, that there was no reported authority in which failure to notify the public had led to a decision being struck down, and that the fact that lay people complained that they find it difficult to follow a hearing in court does not make the process unfair. The claimants' argument was in substance that justice had not been seen to be done.
22. The judge considered (judgment, [38]) that the decision whether to grant outline planning permission was finely balanced. He referred to another site on the edge of Great Dunmow where an application for permission to build 73 dwellings was refused, and that refusal was upheld on appeal. He concluded (see judgment, [39]) "that neither the Planning Inspectorate nor the Inspector really put their minds to considering what was to be the status of initial hearing dates, and how the apparent injustice caused by the inadvertent exclusion of the objectors was to be remedied".
23. There was, in the judge's view (judgment, [39]), a conflict between the approach set out in Taylor Wimpey's question and the letter from the Planning Inspector dated 4 May 2012, see the passages emphasised at [9] above. Because it was left to the Inspector to decide the matter at the further hearing, he considered (judgment, [40]) that it was "not entirely clear to everyone what was going on at the resumed hearing", and that whether or not that impression proved to right or wrong (judgment, [41]), it could not simply be brushed aside at that stage of the proceedings. He therefore concluded (judgment, [43]) that there was more than just an arguable case on the procedural irregularity ground, that it had a real prospect of success, and that, subject to consideration of prejudice to the defendants and public interest, permission to amend should be granted.
24. The judge dealt with prejudice to the defendants at [56] – [57]. He stated that the suggestion that there was prejudice because the Inspector was on leave and the Secretary of State had not been able to file a witness statement might amount to prejudice. As no request was made for an adjournment to obtain such a statement, he stated that it could not be substantial prejudice in relation to any substantive hearing, by which time it would be possible to obtain such a statement. Taylor Wimpey claimed prejudice from the delay which would affect its business as a developer, but the judge rejected that argument on the grounds that the additional delay was comparatively small and insufficient to prevent an otherwise proper claim being put forward.
25. The judge dealt with the public interest at [58] – [59]. He stated that:

"58. …The basic principle is [that]…Parliament has decreed a short time limit of only six weeks for challenges under s. 288, and it is one which cannot be extended by the courts. The reason is to ensure certainty in the planning process, and this is a very important public interest consideration.

59. I agree, and have that well in mind. The corollary is that the process must both be fair, and be seen to be fair, the first time round. Objectors to a planning application have no right of appeal on the merits as a developer does. For them s. 288 is the only form of challenge, and there is a vital public interest in ensuring public confidence in the fairness of the initial planning process."

The Secretary of State's case:

26. Mr Kimblin submitted (skeleton argument, §§10 and 25-26) that, since the amendment introduced an entirely new claim which had not been brought before the expiry of the statutory six week period, "the approach to amendment and substitution necessarily falls under the narrow provisions of CPR Part 17.4", and the judge erred in not dealing with it under that provision. He argued that the judge failed to give the proper weight to the statutory limit and to the purpose of CPR Part 17 as reflected in the provisions in Rule 17.4 in respect of applications to amend after the expiry of a limitation period which introduce an entirely new claim.
27. Citing R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415 at 424 per Laws J;) Cala Homes (South) Ltd. v Chichester DC (2000) 79 P & C R 430 at 441-2 per Mr Robin Purchas QC and Finn-Kelsey v Milton Keynes BC[2008] EWCA Civ.1067, [2009] Env LR 17, per Keene LJ, Mr Kimblin also relied on the particular need for speedy finality in planning cases, the need for promptness in the judicial review of planning decisions. He also relied on the emphasis on the need to reduce delay in the National Planning Policy Framework, paragraph 14.
28. On the operation of Part 17, Mr Kimblin submitted that it was inherently improbable that the Rules Committee intended that CPR Rule 17.4 should apply to an additional claim or a substituted claim after the end of a limitation period under the statutes expressly referred in Rule 17.4(1)(b), but that Rule 17.1(2) should apply to such claims after the end of a limitation period under other statutes which are not referred to in Rule 17.4(1)(b). He contended that to construe Part 17 in this way would defeat the purpose of Rule 17.4 and mean that Rule 17.4(1)(b) will only ever apply to a very limited spectrum of legislation. He also submitted that giving the Rule a restrictive meaning which requires the statute containing the limitation period expressly to allow amendments is illogical because, if the statute contained provisions about powers to amend, there would be no reason to look to the CPR.
29. Mr Kimblin founded this part of his submissions on the proposition that the broader and purposive approach of Dyson LJ (as he then was) in Parsons v George [2004] EWCA Civ 912, [2004] 1 WLR 3264 to CPR Part 19, and in particular Rule 19.5, was to be preferred to the restrictive reading of those provisions by Buxton LJ in the Eco-Energy case. He also argued that the decision of this court in Hanily v Minister of Local Government and Planning [1951] 2 KB 517 should not be regarded as correct because it was a decision under the differently worded RSC, Ord. 28 rule 1.
30. The Parsons case concerned the provision in section 29(3) of the Landlord and Tenant Act 1954 providing that, where a landlord has given notice to terminate a tenancy, an application by the tenant for a new tenancy must be made within four months of the landlord's notice. The tenants applied within the period but mistakenly named the wrong person as the landlord. Their application after the end of the period to substitute the name of the landlord was held to fall within Rule 19.5(1) although there was no reference to the 1954 Act in the Rule and no express provision in the 1954 Act allowing such an amendment.
31. Dyson LJ (with whom Sir Andrew Morritt V-C and Clarke LJ agreed) stated (at [30]) that the natural interpretation of Rules 19.2 and 19.5, (respectively equivalent to Rules 17.2(1) and 17.4),

"is that Rule 19.5 was intended to be the code which governs the position in relation to a change of parties after the end of any relevant limitation period; and that Rule 19.2 was intended to be the code which governs the position in relation to a change of parties in any other case".

Dyson LJ referred to what he described as "important differences" between the two codes, and stated that the conditions that had to be satisfied before the court can exercise its discretion under Rule 19.5 are more stringent and more difficult to satisfy than the corresponding conditions under Rule 19.2.

32. Dyson LJ held (see [35]) that:

"it is possible to interpret Rule 19(1)(c) as referring to any enactment which allows or does not prohibit a change of parties after the end of a relevant limitation period. Plainly something is allowed if it is expressly allowed. But there are many contexts in which it is a legitimate use of language to say that something is allowed merely because it is not prohibited."

33. Mr Kimblin submitted that Parsons v George was to be preferred to the Eco-Energy case, which did not consider the relationship of Rules 19.5 and 19.2 (the equivalents to Rules 17.4 and 17.2(1)). It also did not apparently consider Thurrock BC v Secretary of State for the Environment, Transport and the Regions [2001] 1 PLR 94, in which Brooke LJ expressed the view that Rule 17.4 might be available, or Signet Group PLC v Hammerson UK Properties PLC, Court of Appeal, 9 December 1997, another case concerning section 29(3) of the 1954 Act. In the Signet Group case this court considered that RSC, Ord. 20, Rule 5, the predecessor to Rule 19.5, was the relevant provision for an application to amend the name of the tenant after the four month period.
34. As to whether the ground based on procedural fairness was a new cause of action or a new claim, Mr Kimblin relied on Diplock LJ's classic statement in Letang v Cooper [1965] 1 QB 232 at 242 – 243. He also referred to the discussion by David Richards J in HMRC v Noorasa Begum [2010] EWHC 1799 (Ch) at [27] – [32]. Diplock LJ stated that a cause of action is "simply a factual situation, the existence of which entitles one party to obtain from the court a remedy against another person". David Richards J stated that to determine for the purposes of Rule 17.4 (and section 30(4) of the Limitation Act 1980) whether a "claim" involves a new cause of action requires a comparison of the essential factual elements in the cause of action already pleaded with the essential factual elements in the cause of action proposed. Mr Kimblin submitted that the essential factual elements in the original grounds based on the planning merits of the application and the different decision in a similar planning application in the area were fundamentally different to those in the ground based on procedural irregularity. The need for promptness and the rationale of Rule 17.4 meant the application to substitute this ground some two and a half months after the expiry of the period should not have been permitted.

Discussion

35. The six week period in section 288(3) of the 1990 Act is clearly a limitation period. It would be intolerably inflexible and inconsistent with the overriding objective in CPR Part 1 and with previous authority for there to be no jurisdiction whatsoever to amend or substitute grounds after the end of that period. The questions for decision are the basis for such jurisdiction and the approach to be used when it is exercised in such a case. As to the basis, the choices are Rule 17.4, which is concerned with amendments after the end of a relevant limitation period, the more general power in Rule 17.1(2), or the inherent jurisdiction of the Court.

Does Rule 17.4 apply?

36. I have concluded that, even accepting Dyson LJ's statement (see [32] above) that it is a legitimate use of language to say that something is allowed merely because it is not prohibited, for the following reasons, the six week period in section 288(3) is not a relevant limitation period for the purposes of Rule 17.4. The first reason is that Rule 17.4 is concerned with periods of limitation such as those specified in the Limitation Act 1980. Such limitation periods are regarded as imposing a procedural rather than a substantive restriction. It was for that reason that, in Payabi v Armstel Shipping Corp., "The Jay Bola" [1992] 1 QB 907, at 932, Hobhouse J considered that the predecessor to Rule 19.5, RSC, Ord. 20, rule 5, did not apply to the one year substantive time bar under the Hague Rules. In the case of statutory bars such as that in section 288, as Buxton LJ stated in the Eco-Energy case (at [26]), it has been clear since the decision of the House of Lords in Smith v East Elloe RDC [1956] AC 736 that their effect is substantive. They deprive the court of jurisdiction to question the validity of a planning application after their expiry.
37. Secondly, it has been held that there is jurisdiction to amend a notice of motion against the making of a compulsory purchase order after the expiry of the six week period within which such an order could be challenged under the Acquisition of Land (Authorisation Procedure) Act 1946. In Hanily v Minister of Local Government and Planning [1951] 2 KB 917 the original challenge was made within the statutory six week period but the application to amend by introducing a further and separate ground was made after the period expired.
38. One reason Hanily's case is significant is that, in Parsons v George, Dyson LJ stated (at [25]) that "it would be surprising if the effect of the CPR would be to deny to the court jurisdiction … in circumstances where the court had previously enjoyed such jurisdiction". He was, of course, considering the addition or substitution of parties and CPR 19.5. But, the effect of Mr Kimblin's submission could have just this effect in the present context. It would curtail the jurisdiction exercised before the introduction of the CPR in a public law context which was subject to a statutory ouster clause. If Mr Kimblin is correct, it would also do so in an inflexible way.
39. Although they did not cite Hanily's case, its approach to amendment was used in two other cases concerning section 288 applications. In Brightwell v Secretary of State for the Environment and Broadland DC (1996) 73 P & C R 418 the High Court refused to allow an amendment to the grounds because the claimant refused to undertake to pay costs incurred should it be necessary to adjourn the hearing. The judgment of this Court, allowing the claimant's appeal, deals with that. Although it was not said whether the amendment was made after the expiry of the six week period, it would appear (see 420 and 429) that it was because it was made at a very late stage, indeed after the commencement of the hearing.
40. The second case is Thurrock DC v Secretary of State for the Environment, Transport and the Regions [2001] 1 PLR 94. The Council was permitted to amend its application filed four weeks after the Inspector's decision for permission to appeal pursuant to section 289 of the 1990 Act by substituting an application for statutory review under section 288. On the facts, the amendment proposed was not considered to have the effect of adding or substituting a new claim because from the outset the Council sought the quashing of the planning permission granted and the grounds went exclusively to the reasons it asserted that permission ought not to have been granted. Brooke LJ (at 100) regarded Rule 17.4 as containing "some guidance" and "provisions that might be applicable" but he also had regard to the overriding objective in CPR Rule 1.1(1) and the approach and decision of Mr Robin Purchas QC in Cala Homes (South) Ltd. v Chichester DC (2000) 79 P & C R 430 at 441-2, of which he approved, and which I consider at [52] below. In the Thurrock DC case Brooke LJ considered (at 101) that the Council should be given the right "to straighten out the formalities of [its] claim" where it had launched it erroneously under the wrong section of the 1990 Act. To hold otherwise, he stated "would greatly inhibit the power of the Court to deal with [the Council's] case justly" and give effect to the overriding objective in CPR Rule 1.1(1).
41. Mr Kimblin sought to distinguish these cases as involving less fundamental changes than the one in the present case. He pointed to the statement of Cohen LJ in Hanily's case (at 922) that all that was sought by the amendment was to provide further and better particulars of the challenge. He submitted that Brightwell's case was primarily concerned with the impropriety of the first instance judge in that case putting pressure on a claimant by a costs provision, that it did not discuss the issue that is before us in the present case. He relied on the fact that the amendment proposed in the Thurrock BC case did not (see [2001] 1 PLR 94, at 100) have the effect of adding or substituting a new claim "so far as the substance of the claim for relief was concerned". All that was being done was that the formalities of the claim launched under the wrong section of the Act were being "straightened out".
42. Mr Kimblin undoubtedly gains some support from what Brooke LJ stated in the Thurrock DC case about Rule 17.4. But all that was said was that Rule 17.4 "contains some guidance" and that Rules 17.4(1) and (2) contain "provisions that might be applicable" (emphasis added). Those phrases are tentative and suggest something other than the direct applicability of the rule. Moreover, as the amendment proposed in that case was not considered to add or substitute a new claim, Brooke LJ's view was obiter. Mr Kimblin's remaining submissions about these cases go to the exercise of the discretion to permit amendment after the expiry of the six week period rather than to the question whether that discretion is bounded by the requirements of Rule 17.4. I deal with the question of discretion at [60] – [64] below, but here observe only that, despite the way Cohen LJ characterised the amendment sought in Hanily's case, it appeared (see [47] below) to introduce an entirely new ground.
43. Thirdly, there are linguistic and substantive or policy difficulties in applying the considerations in Rule 17.4(2) in a public law context and carrying over the characterisation of a cause of action in private law and Diplock LJ's classic statement in Letang v Cooper [1965] 1 QB 232 (summarised at [33] above) to a public law cause of action. There would be a degree of irony in doing this in the light of Lord Diplock's later views in O'Reilly v Mackman [1983] 2 AC 237 about the procedural separation of public law and private law. But, leaving that aside and recognising that there are good reasons for the much shorter time limits in public law claims, the differences between public law and private law proceedings mean that it is not straightforward to carry over the characterisation.
44. As to the linguistic difficulty, in R (River Thames Society) v. First Secretary of State [2006] EWHC 2829 (Admin) Underhill J (as he then was) drew on the language used in Rule 19.2(4) to illustrate the difficulty of applying Part 19 to public law proceedings. He suggested that Part 19 was drafted with private law civil proceedings in mind and applies only to such proceedings. Rule 19.2 deals with the general position on adding or substituting a party. Rule 19.2(4) refers to the position where "an existing party's interest or liability has passed to the new party" and the very different sense in which "interest" is used in public law proceedings. Underhill J concluded that it was fairly clear "that what the draftsman had in mind was private law rights and obligations, which are indeed capable of being 'passed' by being devolved or assigned". There is no obvious difficulty in applying the language of Part 17 to public law claims.^[1] Even so, the material identity of the language of Rule 19.5 and Rule 17.4 may indicate that the position under the entirety of Part 17 should be the same as that under Part 19.
45. I turn to the substantive or policy reasons why it can be difficult to apply the considerations in Rule 17.4(2) in a public law context. The first is that public law proceedings generally take the form of a statutory application to quash, an application for judicial review on the well-known common law grounds of illegality, procedural impropriety or irrationality, or a statutory appeal such as that under section 289 of the 1990 Act. As well as the undoubted need for finality, the considerations in play will include the principle of legality (see, for example R v Secretary of State for the Home Department v Pierson [1998] AC 539, 588-9) and other considerations of public policy, including the particular relationship of a court exercising a reviewing power over the decisions of the democratically accountable parts of the state.
46. To allow an amendment to an in-time public law challenge only if the application to amend is made outside the requisite statutory period, here six weeks, where the amended grounds rely on the same or substantially the same facts as the original grounds would be inflexible. It could inhibit the ability of the court to vindicate the principle of legality or to consider the real issues of public interest and policy or the most serious ground for impugning the decision in the way that Lord Steyn stated a public court should in R (Burkett) v Hammersmith LBC [2001] 1 WLR 1593 at [31]. Take the example of an in-time section 288 challenge to an Inspector's decision on a number of technical planning grounds. After the expiry of the six week period, while the case is awaiting hearing in the Administrative Court, information may come to light which suggests that the Inspector took a bribe from the developer or was motivated by an improper purpose which is unconnected to the factual basis of the original grounds. There would, if Mr Kimblin's submissions are correct, be no way that these questions could be determined by the Court. This would be so, even though enabling the new grounds to be determined would not lengthen the time for the disposition of the case and thus the period during which the developer is unable to start the development or otherwise rely on the planning permission.
47. Secondly, Hanily's case supports the view that, in the case of a public law challenge contending that a decision by a public body was ultra vires, otherwise flawed on public law grounds, or vitiated on the restricted grounds specified in the statute, the material factual context is the circumstances of the decision itself. Cohen LJ stated (at 922) that, in the case of an amendment to the notice challenging the compulsory purchase order made in that case under the Acquisition of Land (Authorisation Procedure) 1946, "strictly speaking here we are not dealing with a question of a new cause of action at all". The context of that statement was an amendment which raised an entirely new ground. The original grounds contended that the Central Land Board had acted for an improper purpose because the Board's reason for making the order was that it considered the owner had sought to sell the land for a price in excess of its value and refused to sell on terms approved by it. The additional ground was that there was no planning permission for the development of the land. In the Thurrock BC case, in the context of a change from a section 289 appeal to a section 288 challenge (at 100), Brooke LJ appeared to take a similar approach, although it appears that the evidence filed in support of the appeal went exclusively to the reasons the Council contended that planning permission ought not to have been granted by the Inspector.
48. Mr Kimblin submitted (skeleton argument, §§27 and see [26] – [27] above) that the effect of holding that Rule 17.4 does not apply to the limit in section 288(3) "produces a potentially unfair result which is not capable of logical and consistent explanation". The construction which he advanced would, however, also produce differences between different types of challenge to planning decisions that are difficult to justify. I refer to differences between the position as to amendment of grounds after the expiry of the time limits in challenges under section 288 on the one hand, and, on the other hand, the position in relation to section 289 appeals and planning judicial reviews.
49. Appeals against decisions concerning enforcement notices pursuant to section 289 of the 1990 Act are governed by CPR Part 52: see CPR 52.20. The appeal must be brought within 28 days of notice of the decision, and unlike challenges under section 288, they require permission: see section 289(6) of the 1990 Act. But because they are statutory appeals, amendment of the appeal notice and thus the grounds is governed by CPR 52.8. That provision requires the permission of the court, but does not distinguish between the position of amendments within and those outside the 28 day period. It also does not distinguish amendments raising a point that was argued before the Inspector and those which do not, although the note in the White Book refers to the general principles governing amendments in Part 17. 8.
50. CPR Part 54 governs public law challenges by way of judicial review. Challenges to planning decisions are regularly brought by judicial review where the statutory remedies do not apply. Part 54 permits a claimant to rely on new grounds of judicial review with the court's permission up to seven days before the substantive hearing: see Rule 54.15 and PD54A 11.1. The Rule and the Practice Direction make no distinction between the position of amendments within and those outside the three month period in Rule 54.5. Nor do they restrict the factual matrix within which an amendment can be made.
51. I accept Mrs Graham Paul's submission that the position of amendments to the grounds in planning challenges under section 288, which have similarities to appeals under section 289 and applications for judicial review in planning cases, should not be so different from the position in the other two contexts. The need for finality and to protect those who have obtained planning permission on appeal or successfully resisted an appeal against the refusal of permission and those in an analogous position in respect of proceedings concerning an enforcement notice, is similar. Mr Kimblin did not provide a reason why the policy favouring finality should operate differently in respect of amendments to planning challenges brought within the statutory time limits or, in the case of judicial reviews under CPR Part 54, promptly, in these different contexts.
52. The need for promptness in planning challenges and for speedy finality and so that those who wish to rely on a planning decision can do so is well known, as are the statements in the cases on which Mr Kimblin relied. I do not, however, consider that they assist him in the circumstances of this case. Ex p. Greenpeace and Finn-Kelsey v Milton Keynes BC were cases in which there was a lack of promptness in issuing proceedings. Cala Homes (South) Ltd. v Chichester DC is an illustration of how, despite the recognition of the importance of speedy finality, there is also flexibility. In that case Mr Robin Purchas QC held that, notwithstanding possible prejudice to third parties because of the delay caused by the filing of the proceedings in the wrong office, the need to ensure justice pursuant to the overriding purpose prevailed.
53. In the case of in-time public law challenges, the explanation for the rules not distinguishing applications to amend made within the period and applications to amend outside the period and not restricting the factual matrix within which an amendment can be made may be the considerations I have referred to at [46] and [47] above or the shortness of the time limits in public law cases. It was stated in Hanily's case (at 922) that the shortness of the period is a factor indicating that, if a challenge has been mounted within the period, the courts should be able to allow an amendment in a proper case.

The jurisdictional basis for regulating late amendments to in-time challenges

54. If Rules 17.4 and 19.5 do not apply to an in-time challenge under section 288 where an application is made to substitute respectively new grounds and a new party after the expiry of the six week period and possibly to other public law proceedings, what governs the position? In the case of an amendment to or substitution of the grounds the choice would appear to be Rule 17.1(2) or the inherent jurisdiction of the Court. Whichever it is, the symmetry Dyson LJ sought to achieve in Parsons v George in relation to Rule 19 by regarding it as a code, with Rule 19.2 governing changes before the end of any relevant limitation period and Rule 19.5 those after the end of the period, is not achievable for this and possibly other public law claims.
55. Underhill J's view in the River Thames case was (see [4]) that the source of the power is the inherent jurisdiction of the court. He also stated that the inherent jurisdiction should be exercised, as far as possible, in accordance with the principles appearing in Part 19 and the decisions on that Part and its predecessor in the RSC. He considered (at [5]) that the rejection of the suggestion in the Eco-Energy case that substitution could and should be ordered under Rule 19.5 on the ground that section 288 did not fall within its language might logically have seemed to call for consideration of whether substitution should proceed under Rule 19.2, the general rule from which Rule 19.5 is a carved out exception. He observed that, since the point had not been argued in that way, the court was not required to decide the issue. He considered that the general tendency of the reasons given by Buxton LJ for holding that the case did not fall within Rule 19.5 gave "some further indirect support to [his] conclusion that Part 19 does not apply to public law cases at all".
56. I recognise the force of Underhill J's reasoning. Two factors may suggest that Part 17 should also be interpreted as inapplicable to public law cases. The first is the material identity of the language in Rule 17.4 and that in Rule 19.5. The second is the fact that Rule 17.4 is a carved out exception from Rule 17.1(2), in the same way that Rule 19.5 is a carved out exception from Rule 19.2. If Underhill J's reasoning is applied to Part 17 there would be little difference in practice in regarding the position as governed by Rule 17.1(2) or by the inherent jurisdiction of the court if, as he considered, the inherent jurisdiction is to be exercised, as far as possible, in accordance with the principles in the relevant Part of the CPR (here Part 17) and the decisions on it and its predecessor RSC Ord 20, rule 5.
57. Despite the force of Underhill J's reasoning in the context of Part 19, what has to be considered is the language of Part 17 as a whole and in particular the language of Rule 17.1. There is a difference between Part 17 and Part 19. The difference is, as I stated (at [44] above), that there is no provision in Part 17 and in particular in Rule 17.1 with language equivalent to the language in Rule 19.2(4) which led Underhill J to conclude that it and therefore Part 19 does not apply to public law claims at all. It was because he regarded the language of the general rule in Rule 19.2 as difficult to apply to public law proceedings that he considered its wording showed that public law claims did not fall within Part 19. The same cannot be said about the general rule in Rule 17.1.
58. The absence of anything in the language of Rule 17.1 which makes it difficult to apply that provision to public law cases, together with the fact that Part 17 governs "amendments to a statement of case" and contains the only statement in the CPR of the general principles and rules concerning such amendments have led me to conclude that, as the judge concluded (see [18] above) and Mrs Graham Paul on behalf of the Respondents submitted, it is Rule 17.1(2) which applies in a case such as this.
59. If Rule 17.1(2) applies, and Rule 17.4 does not remove an application to amend or to substitute grounds from its purview, the application remains within its purview. The result would be that in such cases Rule 17.1(2) would govern both before and after the expiry of the six weeks period. It may, if Underhill J is correct about the position under Part 19, lead to some asymmetry between Parts 17 and 19. But, since he considered account should be taken of the principles in the relevant part of the CPR when exercising the inherent jurisdiction, this would be minimal. Dyson LJ's view in Parsons v George (at [30]) that it was arbitrary for two (mutually exclusive) rules to deal with the same subject matter – the position after the end of a relevant limitation period – does not apply because the six week period in section 288(3) of the 1990 Act is not a "relevant" limitation period for the purposes of Rule 17.4. It is true that the consideration of the particular need for finality in the context of planning and the other policy considerations set out by Mr Kimblin would have to be done within an unstructured discretion rather than within the boundaries identified by Rule 17.4. But there is no impediment to taking account of those considerations within Rule 17.1(2). Moreover, the alternative of resort to the inherent jurisdiction, but guided by the considerations in provisions that do not in fact apply to the situation, is unattractive and may produce uncertainty. In view of the potential for uncertainty, and the difference of views, it may be advisable for the Rules Committee to consider this matter.

The application of Rule 17.1(2) to late amendments to in-time challenges

60. I have referred (see [52]) above to the importance of speedy finality in planning contexts. It is of relevance that planning judicial reviews are one of the contexts in which there may be a lack of promptness even within the three month period in CPR 54.5, because of the interests of third parties, in particular, in the case of planning permissions, developers. In ex p. Greenpeace, one of the cases relied on by Mr Kimblin, Laws J referred to the need for a claimant to proceed "with particular urgency" in such cases and, in R v North West Leicestershire DC, ex p. Moses [2000] Env LR 443, Simon Brown LJ (as he then was) stated that the rule that any application for judicial review must be made promptly "applies with particular force when seeking to challenge the grant of planning permission" because there are time limits on the validity of a permission and the developer will normally wish to proceed to implement it without delay: see also Finn-Kelsey v Milton Keynes BC [2008] EWCA Civ 1068, [2009] Env LR 17 at [22].
61. As Mrs Graham Paul submitted, a person is entitled to claim for the relief available under section 288 of the 1990 Act as of right, provided the claim is lodged within six weeks of the Inspector's decision, and is not under a further obligation to act promptly within that period. Nevertheless, the importance of disposing of such challenges with expedition is an important part of the background to the consideration of an application to amend the grounds of the challenge.
62. In view of the shortness of the six week period, it is likely that any amendment to a challenge launched within that period will be made outside it. In the present case, this was the result of the claimants obtaining legal advice in the face of Taylor Wimpey's application for summary judgment. In other cases, it may be the result of further information, not available to a claimant, becoming available. Once proceedings are on foot, however, third parties and the developer know that they cannot rely on the validity of the challenged decision until those proceedings are concluded. If an amendment is made at that stage, what is important is the impact of that amendment on the defendant and other interested parties, including the planning authority and the developer, and on the timetable for the disposal of the case.
63. In this case, while the judge first dealt with whether the case on procedural irregularity had a real prospect of success (see the summary at [21] above), later in his judgment he dealt with both prejudice to the defendants, including the particular prejudice Taylor Wimpey contended would result from the delay, which it contended would adversely affect its business as developers, and the public interest, including "the basic principle" that "Parliament has decreed a short time limit of only six weeks for challenges under section 288" which "cannot be extended by the courts" for the "very important public interest consideration" of ensuring certainty in the planning process: see judgment, [58], set out at [23] above.
64. In respect of the prejudice to Taylor Wimpey, the judge was correct to compare its position with the position had the amended claim been made at the start of the proceedings when, as I have stated, it was clear that there would be some delay. His conclusion (judgment, [57]) that "looked at in this way, the additional delay is comparatively small, and not sufficient to prevent an otherwise proper claim being put forward" is not only well within his discretion but, in my judgment, correct. It is true that, had the amendment not been allowed, the challenge was bound to fail, but I do not consider that the proper comparison. The amendment enabled consideration to be given to the only seriously arguable point in the case, and it was proper, in a case where, for the reason given by the deputy judge the additional delay on the material before him was comparatively small, for the substantial issue to be properly settled by the court's adjudication.

Lord Justice Jackson:

65. I agree that this appeal should be dismissed for the reasons given by Lord Justice Beatson.

Lord Justice Lloyd:

66. I agree that the appeal should be dismissed for the reasons given by Lord Justice Beatson.
67. Not for the first time the case reveals problems in the application to public law proceedings of provisions of the CPR designed with ordinary civil litigation in mind.
68. One would expect that there should be a discretionary power for the court to permit amendments to statements of case in public law proceedings, just as in private civil litigation. In principle there is no reason why CPR Parts 17 and 19 should not apply to public law proceedings, absent another procedural code such as those applying to statutory appeals and to judicial review proceedings. The difficulty in the application of these rules arises from the nature of the provision for cases which are subject to time limits.
69. I agree with Beatson LJ that the inflexible six week limit imposed by section 288 of the 1990 Act is a limitation period, in that it limits the time within which the relevant proceedings can be commenced. It is a different kind of limitation period from those applying under the Limitation Act 1980 since, because of the public law context, if the claim is not brought within the stipulated time the court has no jurisdiction to hear the proceedings at all. By contrast, a limitation defence under the 1980 Act must be pleaded and can be waived, expressly or by failure to plead it. Moreover, with few exceptions the 1980 Act bars the remedy not the right. The time limit under Part II of the Landlord and Tenant Act 1954 which was considered in Signet Group v Hammerson UK Properties (Court of Appeal 9 December 1997) and in Parsons v George can also be waived.
70. The language of CPR 17.4(1)(b)(iii) is odd at first sight, but section 35 of the Limitation Act itself is a provision which allows for the possibility of amendments, as is section 1(3) of the Foreign Limitation Periods Act 1984. The 1990 Act is clearly not an enactment which allows for such amendments, so the case is not within rule 17.4.
71. Consideration of the analogous provision in CPR Part 19 led the Court of Appeal in Eco-Energy to hold that rule 19.5 did not apply to proceedings under section 288. It is not clear why the court did not go on to consider whether rule 19.2 did apply, but at any rate it did not, so the point was left open. Underhill J held in the River Thames Society case that Part 19 did not apply at all, but that the court could exercise its inherent jurisdiction to allow an amendment substituting a party. Like Beatson LJ I recognise the difficulties in applying Part 19 to public law cases (comparable to those in relation to Part 17) but I also share his reluctance to hold that the position is a matter for the court's inherent jurisdiction in such cases.
72. In the present case the deputy judge concluded that rule 17.4 does not apply and that rule 17.2(2)(b) does apply, not being excluded by rule 17.3(2)(c), but that in the exercise of the discretion under rule 17.2(2)(b) the court should have regard to the six week time limit and to the policy underlying the imposition of that short and inflexible limit. It seems to me that, on the present state of the rules, that is the correct position as a matter of law. It was (rightly) not contended for the Secretary of State that the deputy judge erred in the exercise of his discretion, if (contrary to Mr Kimblin's submission) he was not bound to apply the six week limit in such a way as to reject an application to raise a new case outside that time.
73. For these reasons and those given by Beatson LJ it seems to me that rule 17.2(2)(b) did apply to the present case and the court had power to allow the amendment, despite the fact that it raised a new case outside the statutory time limit.
74. I also agree with Beatson LJ's observation that the application of rules about amendment, whether within the ambit of CPR Part 17 or of Part 19, to public law cases, and in particular to proceedings under section 288, may merit consideration, as a matter of policy, by the Rules Committee. It is desirable that there should be such rules, but it does seem odd that their application to cases where a statutory time limit has expired should be so different in section 288 cases as compared with in cases governed by the Limitation Act 1980. Dyson LJ identified the policy behind the formulation of paragraph (c) of rule 19.5(1), the equivalent of rule 17.4(1)(b)(iii), in Parsons v George at paragraph 26 as follows:

"The object of the new paragraph (1)(c) was to ensure that the court cannot allow a change of parties after the end of a limitation period if the statute which prescribes the limitation period does not allow that to be done."

If that is correct, then the change to the rule may not have achieved what was intended, at any rate as regards proceedings under section 288. That is another reason why the subject may merit further study.

Note 1    The possible exception is the provision in Rule 17.4(4) for amendments to alter “the capacity in which a party claims”, but a scenario similar to the facts of the River Thames Society case suggests that a claimant who issues public law proceedings as, for example, the Secretary of an unincorporated environmental association may wish to amend and to continue in his or her personal capacity.    [Back]