Croke v Secretary of State for Communities and Local Government & Anor

A statutory deadline may be treated as expiring on the next working day where it would otherwise expire on a dies non while the court is closed. That principle involves statutory construction rather than judicial discretion. This judgment leaves open whether it extends to a court office that is inaccessible or not functioning for only part of the final day. The unresolved issue was sufficiently arguable to justify permission to appeal. A strict statutory time limit may also be subject to residual extension jurisdiction, including to avoid a breach of human rights, although no such case was arguable on these facts.

The appellant wished to challenge an Inspector’s planning decision under section 288 of the Town & Country Planning Act 1990. The six-week period expired on 23 March 2016. A friend attempting to file the claim was refused entry to the Royal Courts of Justice at 4.25pm, although the advertised closing time was 4.30pm. The appellant attended on 24 March, but was told that an outdated claim form could not be issued and filed the claim on 29 March, after the Easter closure.

Ouseley J refused leave on the papers. The Deputy High Court Judge rejected the renewed application, holding that the claim was out of time: [2016] EWHC 2484 (Admin). The central issue before the Court of Appeal was whether the principle governing deadlines expiring on a dies non extended to partial closure or non-functioning of the court on the final day.

Permission to appeal granted. Hickinbottom LJ granted permission on the single ground concerning the application of the dies non principle to partial closure or non-functioning of the court.

1. Permission threshold. At this stage the applicant needed only to show that the proposed appeal was arguable or had some real prospect of success. Granting permission did not indicate that the appeal would ultimately succeed.
2. Statutory deadline. The six-week period under section 288 of the Town & Country Planning Act 1990 expired on 23 March 2016, and the claim was filed on 29 March. The time limit was ordinarily absolute and jurisdictional.
3. Kaur principle. Authorities including Pritam Kaur v S Russell & Sons Ltd [1973] QB 336, Nottingham City Council v Calverton Parish Council [2015] EWHC 503 (Admin) and Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143 establish the principle that, where a deadline would otherwise expire on a dies non when the court is closed for the day, Parliament intended expiry on the next working day. The principle is automatic and involves no discretion.
4. The authorities did not resolve whether the principle applied where the court was open on the final day but access was refused, or staff could not process the claim before closing time. The issue was arguable, had wider importance beyond section 288 claims, and justified permission. The court made no final determination on whether the claim was made on 24 March or whether any extension followed.
5. Residual jurisdiction. Even a strict statutory time limit may leave a residual jurisdiction to extend time, for example to avoid a breach of human rights, as illustrated by Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, R (Adesina) v Nursing and Midwifery Council [2013] EWCA Civ 818 and Yadly Marketing. The appellant had abandoned reliance on that route, and no arguable case for extension arose on these facts.

1. Court of Appeal (Civil Division): granted permission to appeal on a limited ground: [2017] EWCA Civ 423.
2. High Court, Planning Court: the Deputy High Court Judge rejected the renewed application for permission, holding that the claim was out of time: [2016] EWHC 2484 (Admin).
3. High Court: Ouseley J refused leave to proceed on the papers because the claim was out of time.