Wykham

Permission to pursue judicial review should be granted where the papers disclose a serious arguable issue concerning the effect of Article 1 of the First Protocol on a refusal to pay compensation. This remains so where the earlier court considered the claim substantially out of time, if it is arguable that the earlier communication was not a final decision, that an earlier challenge would have been premature, and that a later communication constituted a fresh decision. Granting permission does not determine limitation or delay. Those issues remain for the judge hearing the substantive application.

This was a renewed application for permission to move for judicial review. Mr Wykham and the Quarantine Association sought to challenge the Ministry of Agriculture, Fisheries and Food’s refusal to provide compensation or financial assistance to quarantine kennel owners following the introduction of the Pet Travel Scheme.

Mr Justice Richards had refused the application on 10 November 2000, treating the Ministry’s decision as having been made and communicated on 8 October 1999, so that the proceedings were substantially out of time and affected by protracted delay. The central issues were whether the letter of 9 May 2000 was a fresh decision and whether the refusal raised a serious issue under Article 1 of the First Protocol.

Application allowed. The renewed application for permission to move for judicial review was allowed, and the matter was to proceed to a full hearing before the Administrative Court.

1. The Court of Appeal did not decide whether the European Convention on Human Rights applied retrospectively or whether the refusal of compensation breached Article 1 of the First Protocol. It was sufficient that the Ministry had purported to consider the effect of that provision and that the case might raise a serious issue concerning its application. The arguability threshold was therefore satisfied.
2. The delay analysis of Mr Justice Richards was powerful, but it was arguable that the Ministry’s letter of 8 October 1999 was not a final decision. The Pet Travel Scheme had not then been introduced, and proceedings at that stage might have been premature. It was also arguable that the letter of 9 May 2000 constituted a fresh decision after the scheme had come into force and the Ministry had considered the applicants’ Convention rights.
3. The Court did not extend time or determine the issue of delay. The judge hearing the substantive application was to decide, on the facts as developed, whether the claim was time-barred or whether relief should be refused for delay, assuming that the claim otherwise justified judicial review.

• High Court: Mr Justice Richards refused the judicial review application on 10 November 2000, treating the operative decision as the Ministry’s letter of 8 October 1999 and concluding that the application was substantially out of time and subject to protracted delay.
• Court of Appeal (Civil Division): the renewed application for permission was allowed. The matter was directed to proceed to a full hearing before the Administrative Court.