Hardy & Ors v Pembrokeshire County Council & Ors

The Court of Appeal’s power under CPR 52.17 to reopen a final determination is exceptional and subject to cumulative requirements: reopening must be necessary to avoid real injustice, the circumstances must be exceptional, and no alternative effective remedy must exist. The jurisdiction is principally concerned with a critical undermining of the integrity of the earlier litigation process, rather than with correcting an ordinary factual or legal error. A mistake in additional, non-essential reasoning will not justify reopening where the decision did not depend on it. Courts should also respect finality in litigation and the effect reopening may have on third parties.

The appellants had unsuccessfully challenged the grant of planning permissions and hazardous substances consents for two liquefied natural gas terminals. Sullivan J refused permission to apply for judicial review on grounds including delay, lack of promptness, prejudice to the developers and the absence of sufficient public interest. On 17 March 2006, this court unanimously refused permission to appeal.

The appellants then applied under CPR 52.17 to reopen that determination. The application was limited to an asserted factual error in the earlier judgment concerning the extent of the Health and Safety Executive’s assessment of risks from LNG on ships. The central issue was whether that error critically undermined the integrity of the earlier appeal process and made reopening necessary to avoid real injustice.

1. Application dismissed. The application to reopen the application for permission to appeal was refused unanimously.
2. CPR 52.17(1) imposes cumulative requirements. Reopening must be necessary to avoid real injustice, the circumstances must be exceptional and there must be no alternative effective remedy. The jurisdiction is rare because it qualifies the principle of finality in litigation.
3. The guidance in Re Uddin (A child) emphasised that the integrity of the earlier litigation process must have been critically undermined. The jurisdiction is directed primarily to corruption of process, such as fraud, bias or an eccentric procedural error, although it is not confined to predetermined categories.
4. The earlier factual mistake was that the Health and Safety Executive had assessed the consequences of a major release of LNG from a ship tied up at a jetty. Even assuming the relevant passage had been essential, the error did not critically undermine the appeal. The Health and Safety Executive had assessed other land-based and jetty-related risks, and the Port Authority had undertaken marine-risk studies and advised that the developments raised no safety concern.
5. The decisive reasoning in the earlier appeal was that Sullivan J had been entitled to refuse an extension of time because of undue delay and prejudice, and had made no error of principle. That conclusion did not depend on the precise scope of the Health and Safety Executive’s studies. The erroneous discussion was an addendum and was not part of the essential reasoning.
6. It was for the Port Authority principally to decide what research was necessary to discharge its statutory safety responsibilities. Judicial intervention would be justified only if it were obvious that the Authority had neglected those duties. The evidence fell far short of establishing that.

• Administrative Court: Sullivan J refused permission on 26 July 2005 to apply for judicial review of the planning permissions and hazardous substances consents, principally because of delay, prejudice and the public-interest balance.
• Court of Appeal: On 17 March 2006 the court unanimously refused permission to appeal. The present court dismissed the application under CPR 52.17 to reopen that determination.