John Affleck v The Royal Borough of Windsor and Maidenhead

In judicial review, the court may extend time where the claimant used an incorrect procedural route but acted within the period applicable to that route, the issues are of substantial public importance, the claim has a realistic prospect of success, and an extension causes no substantial prejudice or detriment to good administration.

Political expression receives the highest protection under Article 10 of the European Convention on Human Rights and Fundamental Freedoms. Restrictions imposed because of a speaker’s conduct must be proportionate. It was arguable that excluding a member of the public from asking a supplementary oral question, including remotely, was a disproportionate interference with political expression.

The claimant sought permission to apply for judicial review of the defendant local authority’s decision of 21 July 2023 preventing him from asking a supplementary oral question at a council meeting. He alleged interference with his Article 10 right to freedom of expression.

The claim was issued on 3 January 2024, outside the three-month period for judicial review. The claimant had initially pursued a civil claim, which was transferred to the Administrative Court, but the transfer order was later set aside. A deputy High Court judge refused permission on the papers. The claimant renewed his application.

The issues were whether time should be extended and whether the proposed challenge had an arguable ground with a realistic prospect of success.

1. Extension of time. Judicial review claims require strict compliance with the time limits in Civil Procedure Rules 1998, rule 54.5(1). The claimant’s claim was out of time, and his status as a litigant in person did not remove the obligation to comply with the rules.
2. Nevertheless, the claimant had pursued what he believed was the correct alternative procedure and had issued that claim within the applicable period. The issues concerned freedom of political speech and were of considerable public importance. There was no substantial hardship, prejudice or detriment to good administration sufficient to prevent an extension. Time was therefore extended under rule 3.1(2)(a) of the Civil Procedure Rules 1998.
3. Arguability. The threshold was whether there was an arguable ground with a realistic prospect of success. Political expression, including criticism of government action, attracts the highest degree of protection under Article 10 of the European Convention on Human Rights and Fundamental Freedoms. Persons holding governmental or public-administration office must remain open to criticism, and the acceptable limits of criticism are wider for them than for private persons.
4. The claimant’s conduct, including becoming agitated and aggressive at council meetings, using extensive pejorative and potentially defamatory correspondence, and making serious allegations against council members, arguably did not provide sufficient justification for preventing him from asking an oral supplementary question. It was also arguable that refusing participation either in person or by remote video link constituted a disproportionate interference with Article 10.
5. Time was extended to 3 January 2024 and permission for judicial review was granted. Directions for the substantive hearing were to follow.

First-instance decision. The judgment records earlier procedural orders in the County Court and Administrative Court, but this court granted permission for judicial review and extended time.