CORUS UK LIMITED v EREWASH BOROUGH COUNCIL [2005] EWHC 2821 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2005] EWHC 2821 (Admin)Case No Case No: C017480/2005Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
CORUS UK LIMITEDClaimantEREWASH BOROUGH COUNCILDefendant
Before
THE HONOURABLE MR. JUSTICE MCCOMBEMr Colin Thomann (instructed by Marrons) for the ClaimantMr Andrew Hogan (instructed by Council Solicitor, Erewash BC) for the Defendant
[1]Mr Justice McCOMBE: This is an application by the Claimant, Corus UK Limited ("Corus") for an extension of time for service of an application under Section 287 of the Town and Country Planning Act 1990 ("the Act"). By the application under the Act Corus wish to challenge parts of the Erewash Local Plan ("the Plan"), adopted by Notice of Adoption dated 9 August 2005. The Defendant is Erewash Borough Council ("the Council").[2]By Section 287(4) of the Act it is provided that an application under section 287 must be made within 6 weeks from "the relevant date". There is no dispute as to the relevant date here, namely 9 August 2005. Further, it is not disputed that the 6 week period expired on 20 or 21 September 2005. (In his written argument for Corus Mr. Thomann says that the time ran to 21 September; ·in oral submissions he said it expired on 20 September. It is not contended that anything turns upon this distinction.) Corus's Claim Form in these proceedings was issued on 20 September. It was served on 23 September.[3]By CPR rule 50.1(2), it is provided that, "These Rules [i.e. the CPR] apply in relation to the proceedings to which the Schedules apply subject to the provisions in the Schedules and the relevant practice directions" The reference to the Schedules is to the Schedules to the CPR. Included in Schedule 1 to the CPR is RSC Order 94 "Applications and Appeals to High Court under various Acts: Queen's Bench Division". RSC Order 94 applies accordingly to an application under Section 287 of the Act. There is no dispute that this is so. By Order 94, Rule 1(2) the application has to be made by claim form which must state the grounds of the application. By Rule 2(1) it is provided that, "A claim form under rule I must be filed at the Crown Office, and served, within the time limited by the relevant enactment for making the application." Therefore, the claim form had to be issued and served in this case by no later than 20 or 21 September 2005 (as the case may be). By error of the agents acting for Corus' s solicitors, having issued the claim form, they returned the same to their principals rather than serving it upon the Council, as I am told they were instructed to do. Service was in fact effected on 23 September. Accordingly, Corus now makes this application.[4]The first problem is that there is an issue as to the procedural rules that govern such an application for an extension. Mr. Thomann for Corus says that CPR rule 3.1 applies; Mr. Hogan for the Council says that CPR rules 7.5 and 7.6 apply. If Mr. Hogan is correct, there are only very limited grounds (none of which apply here) on which the Court has jurisdiction to grant relief where (as here) the application for extension is made after the expiry of the relevant time period. If Mr. Thomann is correct, the Court has a more general jurisdiction.[5]The claim form issued in this case was a claim form of the type envisaged by CPR Part 8. Again, there is no dispute that this was the appropriate type of claim form: see CPR rule 8.1(6), and the Practice Direction paragraphs 1.1, 3.1-3.3, Section B and Table 2 (fourth item) and paragraph B.8. By paragraph 1.1 it is stated that in the practice direction "Schedule rules" means provisions contained in the Schedules to the CPR which were previously contained in the Rules of the Supreme Court. As already seen RSC Order 94 is included in the schedules to the CPR. In Section B, paragraph B.2 (in a series of provisions stating that "Special provisions take precedence") it is provided that, "B.2 The claimant must first comply with any special provision set out in the Schedule rules, practice direction or Act relating to the claim."[6]It is then provided that, "B.5 Subject to any special or contrary provision in an Act or Schedule rule, the claimant must use the procedure set out in the remainder of this section." We know that in our case the Act and "Schedule provision" does make special or contrary provision concerning the time for issue and service of the claim form. Mr. Thomann points out that, subject to this, a Part 8 claim form (within Section B of the Practice Direction) would have to be served not less than 21 days before the hearing date: paragraph B.I O. There is then a passage in brackets at the end of the passage of the practice direction containing paragraphs B.I 0 and B.11 which provides, "(CPR, rule 3.1 (2 )( a) and (b) provide for the court to extend or shorten time for compliance with any rule or practice direction, and to adjourn or bring forward a hearing.)" He submits that this at least gives an indication that the draftsman of these provisions was steering the parties to CPR rule 3 with regard to extensions of time in this area. Further, the commentaries to Section 287 in the Planning Encyclopaedia and to RSC Order 94 in Civil Procedure 2005 Vol. 1 p. 1963, paragraph sc94.2.2 indicate that the time for service may be extended under CPR Part 3, although the editors of Civil Procedure refer to 0.3 r.5 of the old rules. The cases, there referred to, were decided under the old rules.[7]The Council, through Mr. Hogan, argues that the jurisdiction to extend time is to be found in CPR rule 7.6. It is necessary to recite first rule 7.5, which provides, "(1) After a claim form has been issued, it must be served on the defendant. (2) The general rule is that a claim form must be served within 4 months after the date of issue. (3) The period for service is 6 months where the claim form is to be served out of the jurisdiction." Rule 7.6 then provides, "(1) The claimant may apply for an order extending the period within which the claim form may be served. (2) The general rule is that an application to extend time for service must be made- a) within the period for serving the claim form specified in rule '7.5; or b) where an order has been made under this rule. Within the period specified by that order. (3) If the claimant applies for an order to extend time for service of the claim form after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if- the court has been unable to serve the claim form; or the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and, in either case, the claimant has acted promptly in making the application ... " (Italics added by me)[8]In this case, of course, Corus does not apply for an order to extend time for service of the claim form after the end of the period specified "by rule 7.5 or by an order made under this rule". It applies to extend time for service after the end of the period specified by CPR rule 50.1, Schedule 1 and RSC Order 94 rule 2( 1). Thus, on its face, order 7.6 does not apply at all and any power to extend time must be found elsewhere. The "elsewhere", says Mr. Thomann is CPR rule 3.1 (2)(a). It is clearly this interpretation of the rules that is favoured by the editors of the works already cited.[9]Not so, argues Mr. Hogan for ·the Council. He refers to the earlier practice direction issued in respect of Part 8 matters. Paragraph 2.1 of that direction states, "Part 7 and the practice direction which supplements it contain a number of rules and directions applicable to all claims, including those to which Part 8 applies. Those rules and directions should be applied where appropriate." Mr. Hogan submits, therefore, that Part 7 is "applicable" and that it is "appropriate" to apply rule 7.6. He submits that it would be strange if a less strict regime applied to this case, where the statutory time limit is short, than to more usual cases with longer limitation periods of (say) 3 or 6 years and with a longer service period of 4 months.[10]This paragraph of the practice direction makes a statement of fact: it says that Part 7 etc. contains "a number of rules and directions applicable to all claims". It is in the form of a reminder to look to Part 7 to see which of its provisions apply to any particular Part 8 claim. The question, therefore, is whether rule 7.6 is one of those provisions which is "applicable to all claims" including this one. In my view, as a matter of construction it is not. It is expressly dealing with applications for an extension of time after the end of the period specified by rule 7.5 or an order of the court. It is clear that this is not such an application. Therefore, rule 7.6 is not a one of those rules or directions which applies to all claims, including those to which Part 8 applies. Therefore, it is not "appropriate" to apply that rule to this case. (An interesting question arises as to the period for service that applies to matters listed in Section A and Table 1 of Practice Direction B to Part 8 of the CPR, since it appears that the special provisions in paragraphs B2 and following, and in particular paragraph B 10, do not apply to the matters listed in the table in Section A. However, that is not a matter for today.)[11]I am fortified in this construction of the rules and practice directions by certain dicta of Lord Justice Mance (as he then was) in Nagusina Naviera vAllied Maritime Inc [2002] EWCA Civ 1147 . In that case, the Court of Appeal was concerned with the rather similar rules concerning service of claim forms in arbitration matters. At that time the period for service of a claim form challenging an arbitral award was to be found in the practice direction governing such matters, and under paragraph 27.2 of that direction the period set was 21 days. The first issue in the case was whether the claim form had been properly served on the defendant charterers by virtue of service on their P & I club. The court held that it had not and, therefore, it was unnecessary to decide other issues raised on the appeal. One of those issues was whether CPR rule 7.5 (and 7.6) also applied to qualify the 21 period for service provided for by the practice direction: see paragraphs 14 to 16 of the judgments.

Lord Justice Mance said this:

"... 27. Mr. Hancock [for the party seeking the extension] ... accepts, and indeed asserts that his case can be viewed at its highest if one focuses solely on the existence of the 21 day period under the Practice Direction-Arbitration, and treats the essential issue as being whether discretion should have been exercised in his client's favour under CPR 3.1 (2)(a) ... This is a focus which would, of course, arise only if one of various other conditions were satisfied: one being that CPR 7.5 is inapplicable to a Part 8 claim form of the present nature; a second being that, although CPR 7.5 is applicable, it is for some reason right to ignore it when deciding heather or not now to permit an extension ... ; and the third being that, although CPR 7.5 is applicable, the owners could avoid its impact either under CPR 7.6(3) or, possibly, under CPR 6.9(1). In view of the conclusions to which I have ultimately come on the issue of discretion, I think that it is unnecessary to decide whether any of these conditions would be apply. However, since my grant of permission to appeal was influenced by the view that the judge may have been wrong to conclude that CPR 7.5 operated concurrently with the Practice Direction - Arbitration, paragraph 27.2, I would confirm that I remain very doubtful about the correctness of the judge's conclusion that the two can operate cumulatively. Both were expressed to deal with a period for service of a claim form. It seems to me that paragraph 27.2 of the Practice Direction - Arbitration does on its face, and in this particular context, replace CPR 7.5. Part 49(1) of CPR provides: "
These rules shall apply to the proceedings listed in paragraph (2) subject to the provisions of the relevant Practice Direction which applies to those proceedings." 30. It then goes on to refer to the Practice Direction to arbitration proceedings 31. Indeed, not only do I have considerable doubt whether CPR 7.5 could operate alongside paragraph 27.2, it seems to me doubtful whether any of CPR 7 applies to the present old Act type arbitration. However, we did not hear argument on this point, and I need say no more about it." Lord Justice Simon Brown (as he then was) and Lord Justice Latham agreed.[12]I recognise that the fact that Lord Justice Mance had given permission to appeal partly because of his views on this point predicates that the learned judge below (Mr. Justice Andrew Smith) had clearly taken a different view. However, I have not had the benefit of being able to consider the reasoning that lead to Mr. Justice Andrew Smith's conclusions on the issue.[13]It follows that I find that the appropriate rule on which to focus is CPR rule 3.1(2)(a). The discretion there is, as Mr. Hogan accepts, quite general. Mr. Thomann submits that I should have regard to the type of considerations adopted by Mr. Justice Blackburne in Morbaine Limited & ors. V First Secretary of State & ors. [2004] EWHC 1708 Admin , by reference to the decision of Mr. Justice Scott Baker (as he then was) in R v Secretary of State. ex D. Parry [1998] COD 17, namely" the explanation proffered for the delay, the length of the delay, whether prejudice had been caused to the other party, the paramount considerations of the interests of justice, namely the applicant's prospects of success and that "it would only be in rare circumstances, that the court's discretion was likely to be exercised to extend time".[14]Mr. Thomann also relied upon the approach adopted by Mr. Justice Lightman (in a post CPR case, concerning extensions of time to appeal from a VAT Tribunal) in Commissioners for Customs & Excise v Eastwood Care Homes (2000) The Times, March 7. In that case the learned judge examined the position from the point of view in particular of the "overriding objective" of the CPR. He said, "The position today is that each application must be viewed by reference to the criterion of justice and in applying that criterion there are a number of other factors (some specified in the rules and some not) which must be taken into account. In particular, regard must be given, firstly, to the length of the delay; secondly, the explanation for the delay; thirdly, the prejudice occasioned by the delay to the other party; fourthly, the merits of the appeal; fifthly, the effect of the delay on public administration; sixthly, the importance of compliance with time limits, bearing in mind that they are there to be observed; seventhly, (in particular where prejudice is alleged) the resources of the parties."[15]Mr. Thomann submits that the delay was extremely short: two or three days as the case may be. It is explained by the error of the solicitors' agents. There was no fault on the part of Corus itself. The timescale is short and the evidence is that every effort was made to comply. It is submitted that no prejudice has been alleged by the Council. Further, it is argued that the application under Section 287 has strong prospects of success in that the Council failed to adhere to findings made by an Inspector after a public inquiry.[16]Against this, Mr. Hogan submits that the time is indeed short, but that that only emphasises the importance of compliance with it. The Plan which it is proposed to challenge has wider effects than merely between Corus and the Council. It is a public document upon which the public are entitled to rely in the absence of challenge within time. There is a need for certainty in this area of public administration and time limits should be enforced strictly. Mr. Hogan further referred to the warnings given by the Court of Appeal in Anderton v Clwvd CC (No.2) [2002] 1 WLR 3174 , 3184 (in paragraph 2 of the judgment) as to the dangers of leaving service of proceedings to the last moment permitted by the rules; that judgment further emphasised that there will be very few (if any) acceptable excuses for future failures to observe the rules for service of a claim form. As was said in that case, the courts will be entitled to observe a strict approach, even though in some cases the consequences may sometimes appear harsh. Mr. Hogan did concede, however, (while far from accepting the validity of the challenge to the Plan) that Corus did have an arguable case on its proposed application under Section 287.[17]Finally, Mr. Hogan referred to the further decision of the Court of Appeal in Hashtroodi v Hancock [2004] 1 WLR 3206 . In that case, the Court held that since the only reason for the failure to serve the claim form was the incompetence of the claimant's solicitors, time for service would not be extended. In delivering the judgment of the Court, Dyson LJ said (paragraph 36, at page 3216H), "If we were to grant an extension of time in the present case, it seems to us that the rule stated in CPR r. 7.5 would cease to be the general rule. Moreover, there would be a real risk that statements made by this court about the importance of the need to observe time limits would not be taken seriously. That would be most unfortunate."[18]Against this last point Mr. Thomann again pointed to the extremely tight time for making the application, the need for the examination of complex material, the need in. this (as in many such cases) for corporate advice to be taken and decisions made. This was to be contrasted with the three year limitation period and the four month service period which applies in personal injuries cases, which clearly influenced the Court in Hashtroodi : see e.g. paragraph 21 of the judgment, at page 3212. Moreover, I would add as being relevant for my consideration that the evidence in this case demonstrated that Corus's solicitors had acted promptly (including instructing counsel and receiving his draft grounds of application); they had thereupon instructed well respected London agents whom they had previously instructed in similar matters in the past. The oversight appears to have been with those agents. It might be said, therefore, that the "incompetence" was of a far lesser order than that in issue in Hashtroodi's case.[19]In these circumstances, it is clear that I have a discretion to exercise, bearing in mind the factors that I have endeavoured to set out. In addition to those factors I think that it is also right to remember that I am considering a proposed public law challenge to a planning policy, a challenge which the Council concedes is properly arguable. Just as one must bear in mind, as I do, that certainty is required in planning matters and for that reason delay is to be firmly discouraged, it is also the function of the Administrative Court to ensure that public authorities act lawfully and that the public are not artificially deprived of an opportunity to challenge the legality of a public act, which (in this case), as I was told, would persist for three years if uncorrected. In R (on the application of Wandsworth BC) v Secretary of State for Transport [2003] EWHC 622 Admin Mr. Justice Sullivan had to consider a late application (which was late by 28 days) under Section 289 of this Act. In that case, Mr. Justice Sullivan extended time under Section 289(6) (not under the CPR). As part of his consideration he said this, " .. .it must be borne in mind that decisions on enforcement notices are not to be equated with private litigation between the local planning authority, the Secretary of State and the appellant against the enforcement notice. The public interest is engaged. It is in the public interest that if a Secretary of State's decision on an appeal is erroneous in law, the error should be corrected. That is a factor which should always be borne in mind and it may well be that it will override any conclusion that an error on the part of legal advisers should be penalised."[20]In my view, therefore, that is a factor also to be considered here in the admittedly public context of a challenge to the Plan. It may also be said (as the Court of Appeal bore in mind in Hashtroodi" that a failure to serve in time proceedings claiming financial compensation can readily lead to actions in negligence against the defaulting solicitor, the same cannot be so readily said in respect of a delay in failing to serve a challenge to a local plan in a planning law context; the consequences of a breach of duty and the measure of damages might be extremely difficult to calculate, even if a breach is established.[21]In all these circumstances, I come to apply my discretion to the present application·bearing in mind the overriding principle that requires cases to be dealt with justly. I bear in mind the factors identified in CPR rule 1.1 and those identified by Mr. Justice Lightman, Mr. Justice Blackburne and Mr. Justice Scott Baker in applying that principle in the cases already cited. It seems to me that in a case where the Council concedes that there is an arguable case that it has acted unlawfully in implementing a plan which, in certain respects does not follow decisions of an Inspector after public enquiry, with the result that a potentially unlawful plan may affect planning policy for three years, the considerations are rather different from those affecting ordinary litigation of the type considered in many of the recent cases. Obviously, dilatoriness cannot be seen to be encouraged and it will not be encouraged. The leeway available will be slender. However, I do not consider that- it would be at all just to refuse an extension of time for two or three days to challenge an action of a public authority that is potentially unlawful, where the error was of the nature that occurred here.[22]For these reasons, I will grant the extension sought.

Cited in 1 later judgment