QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SEAMUS GAVIN||(CLAIMANT)|
|LONDON BOROUGH OF HARINGEY||(DEFENDANT)|
|WOLSELEY CENTERS LIMITED||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR STEPHENSON QC (instructed by Legal Services, London Borough of Haringey, Wood Green 1) appeared on behalf of the DEFENDANT
MR GOATLEY (instructed by BPE, Cheltenham 11) appeared on behalf of the Interested Party
Crown Copyright ©
"The relationship between Ord 53, r 4, and section 31(6) was considered by the Court of Appeal in Reg v Stratford-on-Avon District Council, Ex parte Jackson  1 WLR 1319 .... with particular reference to the meaning of the expression 'undue delay.' It was there submitted that, where good reason had been held to exist for the failure to act promptly as required by Ord 53, r 4(1), and the time for applying for leave had therefore been extended, the effect of section 31(7) was that in such circumstances there was no power to refuse either leave to apply or substantive relief under section 31(6) on the ground of undue delay, because an extension of time under Order 53, r 4, itself negatives the existence of undue delay. That submission was rejected by the Court of Appeal. Ackner LJ, who delivered the judgment of the court, said, at p 1325:
'This is not an easy point to resolve, but we have concluded that whenever there is a failure to act promptly or within three months there is "undue delay." Accordingly, even though the court may be satisfied in the light of all the circumstances, including the particular position of the applicant, that there is good reason for that failure, nevertheless the delay, viewed objectively, remains "undue delay." The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of udue delay 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."
With this conclusion, I respectfully agree. First, when section 31(6) and (7) refer to 'an application for judicial review,' those words must be read as referring, where appropriate, to an application for leave to apply for judicial review. Next, as I read rule 4(1), the effect of the rule is to limit the time within which an application for leave to apply for judicial review may be made in accordance with its terms, ie promptly and in any event within three months. The court has however power to grant leave to apply despite the fact that an application is late, if it considers that there is good reason to exercise that power; this it does by extending the period. This, as I understand it, is the reasoning upon which the Court of Apppeal reached its conclusion in Reg v Stratford-on-Avon District Council, Ex parte Jackson. Furthermore, the combined effeect of section 31(7) and of rule 4(1) is that there is undue delay for the purposes of section 31(6) whenever the application for leave to apply is not made promptly and in any event within three months from the relevant date.
It follows that, when an application for leave to apply is not made promptly and in any event within three months, the court may refuse leave on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers that there is such good reason, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice (as specified in section 31(6)) or would be detrimental to good administration. I imagine that, on an ex parte application for leave to apply before a single judge, the question most likely to be considered by him, if there has been such delay, is whether there is good reason for extending the period under rule 4(1). Questions of hardship or prejudice, or detriment, under section 31(6) are, I imagine, unlikely to arise on an ex parte application, when the necessary material would in all probability not be available to the judge. Such questions could arise on a contested application for leave to apply, as indeed they did in Reg v Stratford-on-Avon District Council, Ex parte Jackson; but even then, as in that case, it may be thought better to grant leave where there is considered to be good reason to extend the period under rule 4(1), leaving questions arising under section 31(6) to be explored in depth on the hearing of the substantive application.
In this way, I believe, sensible effect can be given to these two provisions, without doing violence to the language of either."
The relevant provisions are now found in the CPR rather than Order 53, but the basic approach has not changed as a consequence.
"Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant."
The proposition I advance is that it is implicit in that that the court may make an order.
"Where the claimant is granted permission, the costs will usually be treated as part of the costs of the claim for judicial review and will be dealt with at the substantive hearing of the applicant. If [he] is refused permission, whether there has or has not been a hearing, he will generally have to bear his own costs".
That seems to be the guidance, my Lord, and I adopt it.
"In my judgment an appellant who has established what this appellant has established is entitled to a fresh consideration by a committee which is not burdened by the possibility of the extraneous factors to which I have referred."
Then interestingly, he actually went on to say:
"Whilst in my view the appellant was advised to have nothing to do with the proceedings which the council proposed to follow on 6 October."
I express no view as to what advice my client might receive in this case or what decision he may take in respect of the reconsideration, but I simply invite your Lordship to note that it is by no means clear that redetermination without a prior decision on the application to quash would be a satisfactory outcome in the light of the views expressed by the court of appeal in Carlton v Conway.