Sharma & Ors, R (On the Application Of) v Upper Tribunal

Procedural rule changes generally take effect when made, but the court must prevent injustice arising from their retrospective practical effect. Where a new time limit applies to challenges concerning decisions made before the change, a short grace period may be allowed. Claims issued after that period require an explanation for delay. An abolition of oral renewal applies prospectively to claims lodged after the commencement date. Claims lodged earlier may retain an accrued entitlement to oral renewal where refusing it would be unjust.

Three judicial review applications challenged decisions of the Upper Tribunal concerning refusals of permission to appeal. The claims were issued more than 16 days after the relevant Tribunal decisions and after the introduction of Rule 54.7A of the CPR on 1 October 2012.

The new rule imposed a 16-day period for such claims and abolished oral renewal where permission had been refused on the papers. The court had required explanations for delay but decided to determine the applications on their merits rather than delay.

1. The applications were dealt with on their merits. The court did not determine them solely by reference to delay.

2. The change made by Rule 54.7A was procedural. Procedural changes normally take effect when made. That principle is subject to the court preventing injustice to persons whose decisions pre-dated the change and who had not yet issued a challenge.

3. Because the rule contained no transitional provisions, the court treated claims issued within 16 days after commencement as subject to a grace period, even where the Upper Tribunal decision was earlier. Claims issued after that period required an explanation for the delay. Publicity about the forthcoming change and its extent were relevant considerations.

4. The abolition of oral renewal applied to claims lodged after 1 October 2012 where permission had been refused on the papers. It did not apply to claims lodged before that date. In those cases, refusal of oral renewal could be unjust because an accrued right to that additional protection might exist.

5. The court observed that claims against the Upper Tribunal rarely proceed because, following the Supreme Court’s decision in Cart, the applicable threshold is the same as that for a second appeal.

Not an appeal. The judgment records three first-instance judicial review applications concerning decisions of the Upper Tribunal.