Hardy & Ors v Pembrokeshire County Council & Ors

A judicial review claim must be filed promptly and, in any event, within three months after the grounds first arose. Filing within three months does not itself establish promptness. The requirement is compatible with legal certainty and the right of access to a court.

An applicant who has delayed must show that the merits or public importance provide good reason to extend time. A claim engaging the right to life remains subject to domestic procedural time limits. Public-safety concerns may justify an extension, but they must be weighed against delay, prejudice to third parties and the interests of good administration.

Local residents sought permission to challenge planning permissions and hazardous substances consents for two liquefied natural gas terminals at Milford Haven. Sullivan J refused permission for judicial review because the claim was not brought promptly, there was undue delay, and proceedings would substantially prejudice the developers and good administration.

The residents sought permission to appeal. They argued that the promptness requirement lacked legal certainty, that the right to life and public-safety concerns outweighed delay and prejudice, and that the decision-makers had inadequately assessed marine risks.

1. Permission to appeal refused. The claim had not been brought promptly. Almost all the challenged decisions were more than three months old when the claim was filed, while the remaining decision was challenged only at the end of that period. CPR 54.5(1) imposes two independent requirements: filing promptly and filing no later than three months after the grounds first arose. Compliance with the latter does not establish compliance with the former.
2. The promptness requirement is compatible with legal certainty and access to a court. The European Court of Human Rights had upheld the requirement as a proportionate means of preventing prejudice to third parties who rely on administrative decisions. Legal consequences need only be reasonably foreseeable, not absolutely certain. The degree of expedition properly varies with the subject matter and circumstances. The doubts expressed obiter in Burkett did not provide a realistic basis for invalidating the rule.
3. Claims invoking article 2 of the European Convention on Human Rights remain subject to domestic procedural time limits. Public safety may be sufficiently important to justify extending time, particularly where it was overlooked or inadequately considered. Nevertheless, an applicant in breach of the time requirements must show merits sufficient to justify an extension. The permission court should not conduct the equivalent of a substantive hearing.
4. Sullivan J was entitled to balance the merits against undue delay, substantial prejudice to the developers and good administration. The developers had entered contracts of very substantial value before proceedings began, and tentative warning letters did not require them to suspend their projects. The planning authorities were entitled to rely on specialist safety advice from the Health and Safety Executive and the port authority.
5. The detailed safety material disclosed no arguable gap in the assessment. Land-based and jetty-related consequences had been considered, while navigation and collision risks had been assessed by the port authority. There was therefore no realistic prospect of showing that public safety had been omitted from consideration. Keene LJ would refuse permission to appeal; Sir Peter Gibson and Chadwick LJ agreed.

1. Court of Appeal (Civil Division): Permission to appeal was refused in [2006] EWCA Civ 240.
2. Administrative Court: Sullivan J refused permission to apply for judicial review on 26 July 2005 because of lack of promptness, undue delay, substantial prejudice to third parties and detriment to good administration.