Farmer, R (on the application of) v English Partnerships

Judicial review must be directed to a particular decision. It cannot be used for free-ranging complaints based on later events that do not undermine that decision. A government agency making a commercial disposal decision may negotiate exclusively with one commercial party, particularly after extended market testing where negotiations are complex and costly. Such a decision is not susceptible to challenge merely because other potential parties were excluded. An extension of time for an appeal will generally be refused where the explanation is irrelevant to the impugned decision and substantial prejudice would result. Applicants for permission to appeal should not ordinarily be ordered to pay respondents’ costs unless exceptional circumstances exist.

Graham Farmer, acting for the Newe Dome Experience, sought judicial review of English Partnerships’ decision on 19 December 2001 to enter exclusive negotiations with Meridian Delta Ltd for the sale and redevelopment of the Dome.

Mr Justice Stanley Burnton refused permission to apply for judicial review, both on the merits and on standing and time grounds. Farmer sought permission to appeal, but lodged his appeal substantially outside the permitted period. He relied on later newspaper reports concerning the conduct of a member of the Meridian Delta consortium. The Court of Appeal had to decide whether to extend time and, if so, whether permission to appeal should be granted.

1. Application refused. Lord Justice Tuckey refused an extension of time. The appeal was lodged many months late, and granting relief would cause considerable prejudice because the parties had since entered into numerous complex contracts to implement the proposed redevelopment.
2. Later allegations concerning the conduct of a member of the successful consortium were irrelevant to the lawfulness of the decision made in December 2001. Judicial review must address a particular decision and cannot provide a vehicle for generalised complaints about subsequent events.
3. The challenge had no merit. A commercial party, including a government agency, may decide to negotiate exclusively with another commercial party. That was especially reasonable here because the choice followed an extended period of market testing and the proposed negotiations were likely to involve substantial legal, professional and time costs. Newe Dome had not demonstrated a viable business plan, financial backing, partners or an organisation capable of delivering its proposal, and therefore had no legitimate complaint about its exclusion.
4. The court expressed considerable doubt about Farmer’s standing, but treated that issue as unnecessary to determine because the challenge failed on the merits and was out of time. If an extension had been granted, permission to appeal would in any event have been refused.
5. The respondents’ request for £5,000 costs was refused. Applicants for permission to appeal should not ordinarily expect to pay a respondent’s costs unless the circumstances are exceptional. This case was not exceptional, although the applicant was warned that a future application might attract costs.

• Court of Appeal (Civil Division) On 11 December 2002, Lord Justice Tuckey refused an extension of time and refused the application for permission to appeal. The respondents’ costs application was also refused.
• High Court, Queen’s Bench Division, Administrative Court Mr Justice Stanley Burnton refused permission to apply for judicial review on 20 May 2002, principally because the claim had no merit, and also on standing and time grounds.