Casey, R (on the application of) v Restormel Borough Council

In urgent judicial review proceedings, an ex parte mandatory injunction should generally be expressed for a defined, usually short, period. Where a defendant applies to discharge it, the application must be listed urgently, ordinarily within days rather than weeks or months. If the injunction is continued, the court should define the final-hearing date, or at least a firm hearing window or deadline, and the injunction’s duration should be linked to it. A defendant given liberty to apply on 48 hours’ notice should not ordinarily be required to make a separate application for expedition.

The claimant challenged the local authority’s refusal to entertain an out-of-time review under Housing Act 1996, alleging errors concerning notification of the decision and the exercise of the discretion to extend time. An out-of-hours judge had granted an ex parte mandatory injunction requiring accommodation to be provided. The authority applied for its discharge, while the claimant sought permission for judicial review and continuation of the injunction.

The court considered whether the claimant had an arguable case and how the resulting interim relief should be managed pending the final hearing.

1. Permission to apply for judicial review was granted. The claimant had a plainly arguable case that the question when she was notified of the authority’s decision, for the purposes of sections 184 and 202 of the Housing Act 1996, might be a precedent-fact issue for the court rather than merely a question of Wednesbury irrationality. The court expressed greater scepticism about the separate challenge to the authority’s use of an exceptional-circumstances formula when exercising its discretion to extend time.

2. The injunction was continued, but only for a tightly controlled period pending an early final hearing. The court considered that the authority’s failure to address the substantive issue arising under section 188(3), because it had rejected the review request as out of time, materially affected the interim assessment.

3. There was wholly unacceptable delay in listing the authority’s application to discharge an ex parte injunction. A defendant subject to such an injunction has an absolute entitlement to have its discharge application heard urgently, ordinarily within a matter of days and certainly not weeks or months. Where the order permits an application on 48 hours’ notice, that period should ordinarily define the acceptable delay, subject only to a limited extension where necessary.

4. Where an ex parte injunction is granted urgently, the court should consider adjourning the matter for an early inter partes hearing instead. If immediate relief is necessary, the injunction should normally be time-limited. If it is continued, the court should fix the final hearing date, or specify a firm hearing window or deadline, and define the injunction’s duration by reference to that date. The burden remains on the applicant to justify continuation of relief granted ex parte.