ETM Contractors Limited, R (on the application of) v Bristol City Council

Extensions of time in planning judicial review claims require promptness, procedural diligence and a careful balance between the claimant’s interests, the developer’s reliance, the public interest and good administration. A short delay does not by itself justify relief. Where the claimant leaves filing until the final day, fails to follow the prescribed electronic filing procedure and does not take the required steps for valid service, the court may refuse both an extension for filing and retrospective validation of service. [2022] EWCA Civ 355 confirms that the court should apply the strict principles governing extensions of time for service in judicial review claims. CPR 6.15 cannot validate service of an incomplete claim form, although the surrounding circumstances may remain relevant to the court’s discretion.

The claimant sought permission to bring judicial review proceedings challenging the council’s grant of outline planning permission to the interested party. The claim form was required to be filed by 3 October 2023, but it was not uploaded through the Document Upload Centre until 10 October and was issued on 11 October. The claimant also attempted service by email using an unauthorised address, a hyperlink and incomplete documents. Service by permitted means occurred after the relevant period.

The claimant applied for an extension of time for filing and for validation of the attempted service. The council and interested party opposed the applications. The central issues were whether the filing delay should be excused and whether the non-compliant service could retrospectively be validated.

1. The application to extend time for serving the claim form was dismissed. Applying [2022] EWCA Civ 355, the court held that the principles in CPR 7.6 governed an application under CPR 3.1(2)(a), with the result that an extension should not be granted unless the claimant had taken all reasonable steps to comply with CPR 54.7. That requirement was not met.

2. The application to extend time for filing was also refused. The claimant’s solicitor waited until the final day, did not consult the relevant rules or guidance, failed to use the Document Upload Centre despite previous experience of it, and attempted to file by hyperlinks rather than attachments. This fell far short of the utmost diligence and care required for a claim form. The court recognised that the delay was only seven days and that some court communications caused confusion, but the claimant remained responsible for knowing the filing requirements.

3. In accordance with [2019] PTSR 1794, the court balanced the claimant’s position against the prejudice to the developer, the council and good administration. Extending time would deprive the defendants of an accrued limitation defence, prolong uncertainty over the planning permission and potentially delay or require reconsideration of the development. The claimant’s alleged operational prejudice was insufficiently evidenced. The factors against relief outweighed those in favour.

4. CPR 6.15(2) permits validation of service by an alternative method or at an alternative place. It does not validate service of an incomplete claim form. The statement of facts and grounds was an essential part of the claim form under Practice Direction 54A. Nevertheless, the court could consider the unusual circumstances under CPR 6.15(2), including the fact that the same email reached both recipients and that the missing statement later came to the council’s attention. Those matters did not justify relief.

5. Applying the factors identified in [2022] EWCA Civ 355, the claimant had not taken reasonable steps to serve in accordance with the rules; the council, but not the interested party, knew the contents of the claim form within time; and retrospective validation would cause prejudice by removing an accrued limitation defence. The application was therefore refused. The claim was dismissed.

This was a first-instance application concerning permission to apply for judicial review. The claim was dismissed following refusal of the applications to extend time for filing and to validate service.