MacMullen v Weymouth & Portland Borough Council

A public authority’s decision about its private-law response to a damages claim is not amenable to judicial review. Judicial review cannot be used years later to reopen earlier benefit decisions. The short time limit may be extended in appropriate circumstances, but not for the lengthy period involved here. A court should confine itself to the judicial-review issue and should not advise on possible alternative remedies where the necessary facts are not before it.

The applicant sought judicial review of the local authority’s refusal to pay damages for historic refusals of benefit, including Housing Benefit. An earlier damages claim had been struck out. Following a further benefit application, a review board upheld entitlement by a majority, and benefit was paid, but backdating was limited to 52 weeks.

Crane J refused the renewed application for judicial review. The applicant appealed, contending that the authority’s earlier decisions and its refusal to compensate him could be challenged. The central issues were whether the challenged refusal was a public-law decision and whether the historic benefit decisions could still be reviewed.

The Court of Appeal refused the application and upheld the decisions below. There was no order for costs.

1. Nature of the challenged decision. The authority’s refusal to pay damages was made in response to a claim alleging impropriety and conspiracy. It concerned the authority’s private-law rights and was not a decision made in a public-law forum. It was therefore not challengeable by judicial review.
2. Delay. The applicant could not use judicial review to reopen the original benefit decisions made years earlier. Judicial review is subject to a short time limit. Although that limit may be extended in some circumstances, it could not be extended to cover the period involved in this case. Even if permission had been granted, the claim was certain to fail.
3. Alternative remedies. The court did not determine whether the applicant might have another remedy. His allegations concerning solicitors and the authority could not affect this application, and the court lacked the factual material necessary to give reliable advice on possible remedies.

1. Court of Appeal (Civil Division): Lord Justice Kay refused the application and upheld the lower decisions in [2002] EWCA Civ 1503.
2. High Court, Queen’s Bench Division: Crane J refused the application for judicial review.
3. High Court consideration on the papers: Sullivan J regarded the application as misconceived.