Redrow Plc & Ors, R (on the application of) v The Secretary of State for Levelling Up, Housing and Communities

A public body operating a discretionary remediation fund should ordinarily follow its published guidance and general principles of good administration. A requirement to take all reasonable steps to recover costs from liable third parties does not require those claims to be exhausted or paid before funding is allocated. Unresolved insurance claims may coexist with fund allocation, subject to later recovery being repaid. The urgent purpose of the Building Safety Fund makes speed a significant factor. A developer facing contingent reimbursement liability has sufficient interest to seek judicial review. A claim may be prompt where the claimant reasonably awaits a promised response and acts when it fails to arrive. Reasons may be assessed in the context of prior correspondence. The appeal was dismissed.

The appellants developed two high-rise Birmingham buildings affected by unsafe cladding. The respondent allocated Building Safety Fund money to the interested-party management companies for remedial works and expected the appellants to reimburse the fund. The appellants challenged the decision by judicial review, alleging unlawfulness, inadequate reasons and procedural unfairness. Eyre J refused permission on the papers. Garnham J refused the renewed application in a judgment at [2023] EWHC 2508 (Admin). The appeal concerned standing, promptness, the proper interpretation of the fund guidance, the effect of unresolved insurance claims, participation in the decision-making process and the adequacy of reasons.

Appeal dismissed unanimously. Coulson LJ gave the leading judgment, with Dingemans and Stuart-Smith LJJ agreeing.

1. Standing. Under section 31(3) of the Senior Courts Act 1981, sufficient interest is assessed by reference to the subject matter of the proposed claim. The appellants’ contingent exposure to reimburse approximately £30 million, and the absence of an effective contractual challenge route when the decision was made, gave them sufficient interest.
2. Promptness. Under CPR r.54.5(1), filing within three months does not necessarily establish promptness. The appellants were entitled to await, for a reasonable period, the promised substantive response to their letter. They acted when it failed to materialise. The alleged delay had no significant practical effect, and subsequent delay was attributable to the respondent. The claim was therefore prompt for the purposes of section 31(6)(a) of the Senior Courts Act 1981.
3. Guidance and insurance claims. The fund guidance was relevant because it was the only available guidance. Its requirement that responsible entities take all reasonable steps to recover costs did not require claims against insurers to reach final resolution or payment. The guidance contemplated ongoing claims, later recovery and repayment to the fund. The interested parties had taken all reasonable steps, and the insurer’s admitted but unpaid liability did not make the applications ineligible.
4. Urgency. The need to address life-safety fire risks quickly was a significant factor built into the fund’s rationale. The respondent was entitled to allocate funding where there was no assurance that insurance proceeds would be available in time. It was not required to wait for the insurer or take a more active role in pursuing it.
5. Fairness and reasons. The appellants had extensive opportunities to participate. The decision letter was read with the earlier correspondence, which made the reasons for allocation clear and showed that the principal objection had been considered and answered. The failure to provide the promised detailed response did not invalidate the decision.

• Court of Appeal (Civil Division): dismissed the appeal, holding that the appellants had standing, acted promptly, and failed to establish unlawfulness or procedural unfairness. [2024] EWCA Civ 651.
• High Court, Administrative Court: Garnham J refused the renewed application for permission to bring judicial review proceedings. [2023] EWHC 2508 (Admin).
• High Court, Administrative Court: Eyre J refused the application on the papers.