El-Mharraf, R (on the application of) v Westminster City Council

Time limits in judicial review must ordinarily be observed, but the court may extend time where the claimant has an arguable case and the overall justice of the case requires an adjudication on the merits. The court must balance the reasons for delay, the importance of the issue, and prejudice to the defendant and others. Procedural default should not ordinarily prevent a merits determination where any prejudice can be addressed by costs. The existence of a statutory appeal may make judicial review less suitable, but does not necessarily exclude it where judicial review remains available in principle.

The claimant, a foreign national with a baby, had been accepted as being in priority need of housing. Westminster City Council treated her as having unreasonably refused accommodation, which affected her continuing access to housing. A statutory appeal under section 204 was not brought within time, and a subsequent application for judicial review was also made late.

Ouseley J refused permission to move for judicial review on grounds of delay. Keene LJ refused permission to appeal on the papers. The issue before the Court of Appeal was whether time should be extended and permission granted notwithstanding the delay and the alternative statutory remedy.

1. Appeal and application granted. The court extended time, granted permission to move for judicial review, and remitted the matter to the Administrative Court. There was no order for costs.
2. Judicial review was inherently unsuitable for resolving issues of this type where a statutory appeal under section 204 was available. That consideration did not prevent judicial review where it remained available in principle.
3. Under Civil Procedure Rules rule 54.5, a claim must be filed promptly and in any event within three months after the grounds first arose. The court also had power under rule 3.1.2 to extend time. Those rules had to be applied consistently with the overriding objective of dealing with cases justly, expeditiously and fairly.
4. Following Costellow v Somerset County Council [1993] 1 WLR 256, the court had to reconcile the observance of time limits with the general principle that a claimant should not ordinarily lose an adjudication on the merits because of procedural default, unless the default caused prejudice which an award of costs could not compensate.
5. The delay, including the short initial failure to bring the statutory appeal and the subsequent period during which advice was obtained, had to be balanced against the importance of the claimant’s housing needs, the arguable factual issue concerning refusal of the accommodation, and the alleged prejudice to the Council. On the facts, the Council’s evidential prejudice was arguable but limited, and other housing applicants were not unduly prejudiced.
6. The importance of determining whether the claimant had actually refused accommodation unreasonably outweighed the delay-related considerations relied upon below. It was unjust to exclude her indefinitely from deserving housing candidates because of a possible muddle which remained an arguable issue.

• Court of Appeal (Civil Division): granted permission to move for judicial review, extended time and remitted the matter to the Administrative Court: [2002] EWCA Civ 1746.
• High Court, Administrative Court: Ouseley J refused permission to move for judicial review: [2002] EWHC 1929 (Admin).
• Permission application: Keene LJ refused permission to appeal on the papers.