Football Samurai Academy Limited, R (on the application of) v London Borough of Ealing [2025] EWHC 3022 (Admin)

[2025] EWHC 3022 (Admin)Case No AC-2025-L0N-002156
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 November 2025
Before
Christopher Kennedy KCsitting as a Deputy Judge of the High Court
Between
THE KINGClaimantLONDON BOROUGH OF EALINGDefendant
Edward Francis (instructed by Messrs Starck Uberoi) for ClaimantFrancis Hoar (instructed by Ealing LBC Legal Department) for DefendantHearing Hearing dates: 28 October 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 19 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Christopher Kennedy KC :

[1]The claimant in this case seeks permission to bring two claims for judicial review against the defendant. Their numbers are AC-2025-LON-002156, which I shall refer to in this judgment as the first claim, and AC-2025-LON-002583 which I shall refer to as the second claim. Both relate to the same subject matter, the defendant’s decision not to proceed with the grant of a lease to it of sporting facilities at North Acton Playing fields, (‘the premises’). There are three preliminary issues for me to determine –(1) whether either claim was filed out of time;(2) whether the first claim was validly served and, if not, whether service should be retrospectively validated;(3) whether, if the second claim was filed out of time, the court should nonetheless extend time. In their helpful skeleton arguments and oral submissions counsel narrowed the issues and concentrated on the key areas of dispute.

Background

[2]The salient history behind the applications is largely uncontroversial. It is set out in the witness statement of Mr Hideyuki Miyahara dated 25 June 2025. In 2008 the premises were leased to Mr Jadeep Mahan on a 14 year lease, expiring in September 2022. The claimant’s chairman and main financial backer, Mr Masao Asai, became the lessee in 2013.[3]Mr Miyahara’s statement details the investment made by the claimant and the community programmes it has run during the time Mr Asai has leased the premises. It is the claimant’s case that all this was done in the expectation that the lease would be extended. That in turn would allow access to further funds to expand and renovate the facilities.[4]Heads of terms for an extension of the lease were provided in late 2016 but they were not proceeded with and matters remained in abeyance until after lockdown. At that stage there were discussions about the state of the premises, proposals for renovation and the terms of the new lease. However there was no new lease at the date of expiry of the old one. The claimant was reassured by the defendant that there was no cause for concern. Exchanges continued, again at a leisurely pace. Eventually, on 19 March 2024, the claimant received new heads of terms which it signed.[5]On 17 April 2024 Ms Jessica Tamayao, one of the defendant’s officers, made a decision under delegated authority to grant a lease of the premises to the claimant for a period of 21 years, backdated to 29 September 2022. She gave reasons for her decision, first that the claimant had been holding over since the expiration of the previous lease, second, that terms had been agreed and third, that the grant ensured that the defendant’s commercial property portfolio would be managed in an effective and efficient manner, reducing the amount of unregulated tenancies and void properties within it. Overall, her conclusion was that the decision would reduce holding costs and risk to the defendant, obtain value for money and it was in line with best practice.[6]The claimant appointed solicitors and a draft lease was produced at the beginning of July 2024. Mr Miyahara then describes a period of ‘stalled progress’. As he notes in his statement, on 16 October 2024 the defendant’s land agent, Mr Chris Harding, wrote to the claimant to explain that the defendant had been discussion about the utilisation of the site, about the current state of the property and how it could be improved. The defendant further informed the claimant that the tennis club on the site wanted a direct relationship with it. This stimulated further discussions about what investment the claimant might make. Those discussions took place during December 2024 along with discussions about a new coffee van which, it was proposed, would trade from the premises. The defendant told the claimant in an email dated 24 December 2024 that the resolution of the coffee van issue would have to await the new lease. In the same email the defendant told the Claimant that it was reviewing the future of the site and would be finalising its approach in January 2025.[7]Mr Miyahara describes the next event of significance at paragraph 41 of his statement, “Entirely out of the blue we received a formal letter from the Council dated 25 March 2025 requiring possession of the premises by 22 April 2025 and demanding payment of backdated rent of £34,275.61…The shock was profound, as no prior explanation had been given of such intended action. The letter itself provided no reasons for the council’s about-turn.” The letter to which Mr Miyahara refers was written by Asma Ahmed, one of the defendant’s senior property lawyers.[8]Faced with the notice to quit contained in the 25 March 2025 letter, the claimant instructed solicitors Messrs Starck Uberoi. They wrote to the defendant on 16 April 2025. They recited the history of the relationship between the parties and the works undertaken at the premises, before stating, “Our client would not have done this, if they were aware that their lease was going to be terminated.” Reliance was placed on the doctrine of estoppel and an assertion made that an equitable or periodic tenancy had in fact been granted. The prospect of an application for judicial review was also raised, on grounds of irrationality or illegality rather than abuse of power. That correspondence suggests that the claimant’s understanding was that the defendant had made a decision to terminate the lease.[9]In its response dated 12 May 2025 the defendant replied to the claimant and stated that, “after careful review the Council’s position is settled. ” It rejected the claimant’s claims to be able to rely on estoppel or that it had granted a tenancy. It repeated its demand that the claimant leave.[10]On 3 June 2025 Messrs Starck Uberoi sent a pre action protocol letter of claim to the defendant intimating its intention to challenge by way of judicial review, “your decision set out in your letter of 25 March 2025 and confirmed by your letter of 12 May 2025 to renege on your previous agreement to grant to our client a new lease”. It was suggested that the claimant had a legitimate expectation of renewal. A reply was requested by 12 June 2025.[11]The essence of the claimant’s argument in its 3 June 2025 letter was that, in its decisions regarding the extension of the lease, the defendant was not acting simply as a private landowner but was rather performing a public function so that its decision engaged public law principles. The Claimant gave three reasons for this, “a) the premises, as others within the Council area, comprise facilities intended to benefit the local community and to make provision for sporting and recreational pursuit; decisions relating to disposal of land intended for public amenity are by the nature of the land ones which are not merely matters of private law, and are not merely financial or commercial decisions: sec e.g. R (Molinaro) v Royal Borough of Kensington & Chelsea [2001] EWHC 896 (Admin), [2002] LGR 336; R (Ise Lodge Amenity Committee) v Kettering Borough Council [2002] E\VHC 1132 (Admin);” “b) moreover, the Council makes such facilities available through private providers to whom this and other facilities are let under terms designed to ensure public accessibility, under which the relationship between the Council and the provider is rather different from that of commercial landlord and tenant;” “c) a decision in exercise of a local authority's statutory powers of disposal may also engage public law principles where it constitutes an abuse of power: see e.g. Molinaro at [69]; circumstances amounting to abuse of power are not limited to cases of fraud, corruption or bad faith, but may include acting for improper or unauthorised purposes or contrary to published policy or previous assurances: see R (Trafford) v Blackpool Borough Council [2014] EWHC 85 (Admin) at [47]-[55J, [59].” The claimant has continued put its case in this way.[12]The defendant responded by a letter dated 11 June 2025. It set out its reasons for its decision not to enter into a lease. They related to the state of repair of the premises, its use while in a state of disrepair, a lack of response to previous concerns and shortcomings in the development proposals. In relation to the allegations that the claimant had a legitimate expectation of renewal and that it had abused its power, the defendant maintained that there was no unequivocal representation that a lease would be granted and it was not unfair for the defendant to change its position. It did not accept the allegation of abuse of power. It pointed out that not all property decisions by a public authority attract public law duties.[13]Mr Francis, counsel for the claimant, drew my attention to the fact that the defendant’s letter of 11 June 2025 referred to it having served a notice to quit in May 2025. Had that been so that might have been important in establishing the date of the decision to be reviewed. However, it is clear from the correspondence that the notice to quit was given in the letter dated 25 March 2025 and the reference in 11 June letter to May 2025 is an error.[14]The claimant disputed the factual issues raised by the defendant in further correspondence dated 18 June 2025.[15]On 25 June 2025 the claimant filed the claim form in the first claim seeking judicial review of the defendant’s decision which it described as follows, “Decision(i) to rescind the Defendant’s previous decision made on 17 April 2024 to grant to the Claimant a new lease of premises known as the Lodge and Tennis Courts at North Recreation Ground, Acton, London W3 0JP and / or to withdraw from the process of completing the new lease and(ii) to serve notice to quit requiring possession of the new premises by 22 April 2025” The date of the decision was pleaded as 25 March 2025. The claimant sought a declaration that it had a legitimate expectation that the lease would be completed and sought orders consequential upon that expectation, either a mandatory order for a new lease or an order for consultation and fresh consideration.[16]What happened between 25 June 2025 and 17 July 2025 gives rise to the first procedural issue which I have to determine. On 25 June 2025 Mr Sina Mahouzi, the claimant’s solicitor, sent a bundle including the Statement of Facts and Grounds by email to the defendant’s solicitor, Ms Jennifer Jarvis-Roberts. Mr Mahouzi stated that she would forward the sealed claim form once it was received from the court. The claim was issued on 1 July 2025 and Mr Mahouzi sent an email, again to Ms Jarvis-Roberts, attaching the sealed claim form on 2 July 2025. It is common ground that this did not constitute good service as the defendant had not stated that it would accept service by email, either at Ms Jarvis-Roberts’ address or any other.[17]The time for service expired on 8 July 2025.[18]I have seen a certificate of service dated 25 July 2025 evidencing service by post on 17 July 2025. The service was of the claim form, a list of essential reading, the statement of facts and grounds, the witness statement of Mr Miyahara and the exhibits thereto.[19]On 18 July 2025 the defendant informed the claimant and the court that it reserved its position with regard to the validity of the service of the claim form.[20]Mr Mahouzi provided a statement to the court on 25 July 2025. In addition to rehearsing the chronology of what had happened since the claim was filed, the contents of the statement reveal a change of position on the part of the claimant. Having maintained that the decision the subject of review had been taken on 25 March 2025, Mr Mahouzi now stated only that that ‘may be’ the case and trailed the proposition that the decision had not been made until 12 May 2025, the date of the defendant’s ‘settled position’ letter.[21]The claimant filed the second claim on the same date as Mr Mahouzi’s statement, 25 July 2025. The form was issued on 5 August 2025 and served on 8 August 2025. Save that the second claim pleads the date of decision as 12 May 2025 and seeks an extension of time if that contention is rejected in favour of the claimant’s first pleaded date 25 March 2025, the second claim is identical to the first claim.[22]On 7 August 2025 the defendant sent its summary grounds of resistance to the claimant by email but did not include an acknowledgment of service. The defendant was notified by an email dated 8 August 2025 (received 11 August 2025) that the claimant, in common with the defendant, did not accept service by email. By an application dated 11 August 2025 the defendant sought relief from sanction and/or retrospective validation of its service. It served the summary grounds of resistance the same day. The acknowledgment of service remained unserved but was provided under cover of a letter dated 19 August 2025. This was a breach of the guidance in the Administrative Court Guide 2025 (para 8.2.3) but not a breach of the Civil Procedure Rules which do not specify consequences for a failure to serve acknowledgment of service on a party. (There may be an analogy to be drawn with what happens when a defendant does not file an acknowledgment of service, which is addressed at CPR 54.9.) I dealt with this application at the outset of the hearing. Mr Francis did not take the point and, in so far as it was necessary for me to do so, I granted the defendant relief from sanction.[23]The defendant’s summary grounds of resistance dated 7 August 2025;a. rely on the late service of the claim form in the first claim;b. assert that the date of the decision was in October or December 2024 because by that time it was clear that a lease in substantially the same terms as had been discussed would not be offered by the defendant to the claimant;c. maintain that the substantive claim is not arguable because, i. legitimate expectation arguments cannot be used in relation to a decision to dispose of land used for recreation when the decision concerned the identity of the lessee and there was no concluded agreement. The claimant could not reasonably rely on any expectation and in fact did not do so; ii. the defendant did not make an express or implied promise to consider representations from the claimant; iii. there was no obligation to consider representations from the claimant; iv. this was an exercise of private rights by the defendant and not susceptible to challenge by reference to pure rationality grounds.d. rely on the fact that no remedy in contract or equity has been pursued in this case and that that would be the obvious route to take;e. argue, based on its contentions as to the date of the decision, that the claimant was out of time in relation both to the first and second claims.[24]By an application dated 12 August 2025 the claimant sought an order under CPR r 6.15(2) declaring that its steps to serve the claim form in the first claim constituted good service, alternatively seeking an extension of time for the same under CPR r 3.1(2)(a). This application was supported by a further statement from Mr Mahouzi dated 12 August 2025 in which he rehearsed the chronology above, averred that the defendant had not been prejudiced and sought the exercise of the court’s discretion.[25]On 20 August 2025 the defendant filed submissions in opposition to the claimant’s application for relief from sanction. In addition to its earlier submissions, it argued that the second claim was not a valid route to extend time for service and should not be allowed to be used as a device to cure defects in the first claim. On 27 August 2025 the defendant filed summary grounds of resistance in the second claim. The arguments set out there are similar to those rehearsed above. The claimant replied to the defendant’s summary grounds on 15 September 2025, helpfully setting out its position at a point where matters had crystallised.[26]By an order dated 16 September 2025 Andrew Kinnier KC, sitting as a deputy high court judge, ordered that the first and second claims be heard together and ordered an oral permission hearing. He further ordered that the hearing should address the following preliminary applications:a. The claimant’s application for an extension of time to serve the first claim;b. The defendant’s application for relief from sanctions with regard to the acknowledgment of service (I addressed this at the beginning of the hearing);c. The claimant’s application for an extension of time in which to bring the second claim;

The issues

[27]I have approached the issues in the following[28]I must decide which of three formulations of the nature and date of the decision is correct;a. The decision was made when the defendant decided in the latter part of 2024 that it wanted to alter the terms of the lease. This made it clear that the defendant had decided no longer to offer the same or substantially the same terms to the claimant. That is the defendant's formulation;b. The decision was made on 25 March 2025, the date of the letter from the defendant giving the claimant notice to quit. This is both parties’ reserve formulation;c. The decision was made on or before 12 May 2025 when the defendant notified the claimant that its position was settled. This is the claimant’s formulation in the second claim, a change of position from the formulation in the first claim which pleaded 25 March 2025 as the date of decision.

Submissions of the parties

[29]The claimant invites me to reject the notion that the defendant made any decision in the latter part of 2024. It points out that there is nothing comparable to the officer’s decision document of 17 April 2024, evidencing a new decision, and that the correspondence referred to are no more than indications as to matters which are not central. There is nothing to suggest a lease would not be granted. The last piece of substantive correspondence before the 25 March 2025 letter was the correspondence on 24 December 2024 which referred to the new use of a coffee van being placed on hold until the parties had agreed a new lease and to an approach being finalised in January. That letter would not have been written in that way if a decision had already been made.[30]The claimant (in the second claim) makes a similar point about the absence of a further decision document in support of its contention that no decision had been made in March. It is asserted that it is only the May communication that evidences an unequivocal decision. However there was no decision document in relation to that either. Whilst accepting that the analogy is not perfect, the claimant relies on the distinction drawn in relation to planning permission between a provisional expression of a view which is subject to further representations and a final decision. This example was used in R (Burkett) v Hammersmith and Fulham London Borough Council and other [2002] 1 WLR 1593 at para 43.[31]The defendant submits that I should attach greater weight to the October and December 2024 correspondence, which show that any lease granted would not be on the same terms. That is sufficient to amount to a decision.

Discussion

[32]I have formed the clear view that the letter of the 25 March 2025 was the date of the relevant decision in this case. The October and December communications to which the defendant refers were to the effect that it wanted to take matters in a different direction and that any new use of a coffee van needed to be placed on hold. These communications do not indicate a decision not to offer a lease and the 24 December 2024 communication can only sensibly be read as indicating that a decision had not at that stage been made. At their highest they indicate some misgivings, which might in the future result in a decision not to proceed. The communication on 25 March 2025 was different. It made it clear that the defendant would not enter into a new lease and the claimant should leave. It was treated as a decision by the claimant in correspondence (see for instance the letter of 16 April 2025, part of which I quoted at paragraph 8 above). The letter of 12 May 2025 is not a decision. It is a confirmation of the decision previously made.

(b) Was the first claim filed in time

[33]CPR r 54.5 stipulates that a claim must be brought promptly and, in any event, not later than 3 months after the grounds to make the claim first arose. It follows from my decision that the relevant date was 25 March 2025 and thus that the claim was filed in time, albeit on the last day.

(c) Was the first claim served in time

[34]CPR r 54.7 requires that the claim form be served on the defendant within 7 days after the date of issue. It was issued on 1 July 2025 and so should have been served by 8 July 2025. The claimant accepts that the first claim form was sent on 15 July 2025 and deemed served on 17 July 2025. It was therefore served out of time. (d). Should the court use its powers under CPR r 6.15 (2) or CPR r 3.1(2)(a) to permit service by an alternative method or to extend time.[35]The court can order that steps already taken to bring the claim form to the attention of the defendant constitute good service (CPR r 6.15(2)) and it can make an order extending time for service (CPR r 3.1(2)(a)).

Good Law Project

[36]Guidance as to how judges should approach the powers under CPR 6.15(2) and CPR r 3.1(2)(a) was given by Carr LJ (as she then was) in R (Good Law Project) v Secretary of State for Health and Social Care [2022] 1 WLR 2339.[37]In Good Law Project the appellant claimant (‘Good Law’) had served a copy of the unsealed claim form on the defendant’s designated email address and, whilst the relevant case officer in the Government Legal Department had been sent the sealed claim form within time directly, the appellant had not, at the same time, served the claim form on the designated electronic service address. It validly served the sealed claim form on the designated address the day after time for service expired.[38]Good Law applied for orders(i) that the court use its power to cure an irregularity under CPR r 3.10 (subsequently acknowledged not to be an available route following the decision in Ideal Shopping Direct v Mastercard [2022] 1 WLR 1541),(ii) that the court permit service at an alternative place under CPR r 6.15 and(iii) that the court grant an extension of time for service under CPR r 3.1(2)(a). The judge at first instance, O’Farrell J, refused the applications and set aside the claim form for want of jurisdiction. The Court of Appeal took the opportunity to consider the principles applicable to the exercise of discretion under these three parts of the CPR, the discussion concerning CPR r 6.15 being most relevant to this case.[39]The reasons why O’Farrell J had found that the claimant had not established a good reason for the court to exercise its power under CPR r 6.15 are set out at para 35 of the judgment of the Court of Appeal,a. The defendant had clearly specified that service was to be via its designated email address and that had not been done;b. No step was taken to serve the sealed claim form by the specified method within the stipulated period;c. Establishing that a defendant is aware of the claim is not sufficient to amount to a good reason;d. Being deprived of a limitation defence constitutes prejudice to a defendant;[40]Carr LJ identified two broad contextual points (paras 38 to 41),(i) the need for promptness and speed in judicial review claims generally and(ii) the particular importance of valid service of the claim form. She explained the reasons for the second point at para 41, “As for the importance of valid service, service of a claim form can be distinguished from other procedural steps. It performs a special function: it is the act by which the defendant is subjected to the court’s jurisdiction. This quality is reflected in the terms of CPR r 7.6, with its very strict requirements for any retrospective extension of time. Equally, reliance on non-compliant service is not one of the instances of opportunism deprecated by the courts (see for example Woodward v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 (“Woodward”) at [48]). The need for particular care in effecting valid service, particularly when there are tight time limits and/or a claimant is operating towards the end of any relevant limitation period, is self-evident.[41]Carr LJ confirmed the previous jurisprudence that what amounts to “good reason” is essentially a matter of factual evaluation (para 54) before providing a summary of relevant considerations (para 55), “The following summary suffices for present purposes:(i) The test is whether in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant are good service;(ii) Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is a critical factor. But the mere fact that the defendant knew of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR r 6.15(2);(iii) The manner in which service is effected is also important. A “bright line” is necessary to determine the precise point at which time runs for subsequent procedural steps. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period. It is important that there should be a finite limit on the extension of the limitation period;(iv) In the generality of cases, the main relevant factors are likely to be: (a) Whether the claimant has taken reasonable steps to effect service in accordance with the rules; (b) Whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired; (c) What, if any, prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form. None of these factors are decisive in themselves, and the weight to be attached to them will vary with all the circumstances. (See Barton at paras 9, 10 and 16.).” (a) Whether the claimant has taken reasonable steps to effect service in accordance with the rules; (b) Whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired; (c) What, if any, prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form. None of these factors are decisive in themselves, and the weight to be attached to them will vary with all the circumstances. (See Barton at paras 9, 10 and 16.).”[42]In commenting on the public interest arguments raised by Good Law in relation to CPR r 6.15, Carr LJ made it clear (para 70) that neither the public interest nor the merits of the claim should be examined when considering whether there is a good reason to permit an alternative method of service. She acknowledged (para 76) that another first instance judge might have granted Good Law’s application under CPR r 6.15 but that was not the test. She, with the support of Underhill LJ, refused the appeal. She concluded (paras 83-84), “83. The procedural rules as to service are clear, as was the SSHSC’s nominated address for service. Compliance with the rules is part of the overriding objective in CPR r 1.1. The availability of e-mail communications does not lessen the importance of strict compliance, although it may mean that even greater care when it comes to service formalities needs to be taken. It is important to emphasise (again) that valid service of a claim form is what founds the jurisdiction of the court over the defendant. Parties who fail, without good reason, to take reasonable steps to effect valid service, in circumstances where a relevant limitation period is about to expire, expose themselves to the very real risk of losing the right to bring their claim.84. The consequences of the error in service may seem harsh in circumstances where the sealed claim form was sent to the SSHSC’s lawyers within time. But as the authorities demonstrate, CPR r 6.15 is not a generous provision for claimants where there are no obstacles to valid service of a claim form within time. The power to validate will not necessarily be exercised even when the defendant, either itself or through its solicitors, is fully on notice within time and the only prejudice to the defendant would be the loss of an accrued limitation defence.”[43]I am asked by the claimant also to consider carefully the judgment of Phillips LJ in Good Law Project,dissenting in relation to the application of CPR r 6.15 and by the defendant to consider Underhill LJ’s judgment which responds to it. Phillips LJ considered the failure in this case ‘highly technical’ (para 90) and observed, “If service is not to be validated retrospectively in such circumstances, form really has triumphed over substance and litigation has become a game of forfeits: the over-riding objective, to deal with cases justly, has itself been over-ridden.” He disagreed with O’Farrell J’s approach to the failure to serve because, in his view, she did not move on from the failure to serve, which was the very thing which had led to the invalidity in the first place and she thus did not consider all that was done in and around the attempt to effect service. As he stated at para 91(i), “In the present case the Judge did not take into account that Good Law had taken all steps necessary to effect service, by a permitted method, namely, e-mail (unlike in Barton, where service by e-mail was not a permitted method and the claimant had failed to carry out any enquiries in that regard), and had done so promptly (again, unlike Barton, where attempted service was left to the last moment of a lengthy service period). Other than the single but crucial technical failure of omitting the nominated address which led to invalidity, Good Law had acted entirely reasonably;” He further considered it relevant that the email address to which the sealed claim form was sent was that of the specific case manager dealing with the case and that service on the nominated email address would have added nothing. He agreed that the loss of a limitation defence should be taken into account, but it could not be the end of the consideration.[44]In comments responding to the judgment of Phillips LJ, Underhill LJ identified two types of case where it would typically be just to use the power under CPR r 6.15,(i) where the defendant has obstructed service and(ii) where the defendant has been thwarted by some unforeseen external occurrence (para 98). The present case did not conform to those descriptions. Neither does the case before me. Underhill LJ reviewed the judge’s exercise of her discretion (para 100) and noted that the fact that the failure to effect service was a result of carelessness was ‘plainly a matter of real importance in the required assessment.’ He considered the deprivation of a limitation defence to be capable of being sufficient prejudice to justify refusing the application even where there is no other prejudice. He concluded (para 101), “Underlying Good Law's various particular criticisms of the Judge's decision is a more general point that it cannot be right that they should be deprived of the chance to progress their claim because of a trivial, or “technical”, procedural error which caused no problem of any kind; and that the fact that the error of that kind ought to constitute a good reason for retrospective validation. Phillips LJ makes that point in strong terms at para 90 of his judgment; and I of course see its force. But it is important to keep in mind the real issue in an application under CPR r 6.15(2). A claimant is asking for a retrospective validation of non-compliant service in order to circumvent a limitation defence. Quite trivial errors can sometimes lead to limitation deadlines being missed. That can be harsh, and may be characterised as technical; but it is recognised as a necessary consequence of a limitation regime. The court will in this context be less ready to overlook mistakes of a kind which in other contexts would be accorded no real weight.”

The submissions of the parties

[45]In his arguments on behalf of the claimant, Mr Francis frankly accepted that matters had not been handled as well as they might have been. However he relied on the fact that, whilst it did not offer an email address for service, the defendant had provided an email address in correspondence and, subsequent to the invalid service of the claim form in the first claim, did accept service of other documents in the case by email. The defendant itself sought to serve documents by e-mail (also ineffectively but without the potential for such serious consequences). The defendant did not immediately object to the purported service, although it is not suggested that it was ever accepted. There could be no question but that the defendant was aware of the claim. It had received the unissued form and relevant documentation before proceedings started and then it received the claim form itself. I was urged to find that the defect was “technical”. Mr Francis also submitted that the factual context of this claim was very different to Good Law Project. This case did not involve procurement and the failure to serve occurred against the backdrop of the protracted lease renewal negotiations. The loss of an accrued limitation defence apart, there was no prejudice and he reminded me that the loss of such a defence is not decisive. Reliance was placed by Mr Francis on the approach of Phillips LJ in his dissent.[46]In inviting me not to find that there was a good reason in this case, the defendant reminded me that the grant of permission for service by an alternative method is exceptional. It relied on the fact that the reason advanced was a failure on the part of the claimant’s solicitors and that it would lose an accrued limitation defence. Mr Hoar, on behalf of the defendant, described this case as ‘on all fours’ with the Good Law Project. He pointed out that, even if Ms Jarvis-Roberts had said that she would accept service at her email address, what was served on that address would not have been effective as the required documents were not all served at the same time. He relied on the response of Underhill LJ to the concerns raised by Phillips LJ in Good Law Project itself.

Discussion

[47]In considering whether or not the claimant has established that there is good reason to authorise service by alternative means, I have taken as my starting points(i) the need for speed in judicial review claims and(ii) the particular importance of the service of the claim form with the consequent need for care in ensuring that the rules are strictly complied with. This the clarity necessary in this field. As I indicated in my summary of Good Law Project,the merits of the claim are not relevant to the exercise of the discretion under CPR r 6.15.[48]The defendant has not been taken by surprise by the claim. It is prejudiced, but not beyond the loss of its potential limitation defence. Both are important but not critical factors. They point in different directions. The defendant did not specify an email address for service but equally, and unlike in Good Law Project,the defendant had not accepted service by email at all. This was not therefore a case where an address was omitted from the email serving the claim form; rather service should not have been attempted by email.[49]It is for the Claimant to establish a good reason for me to exercise my discretion under CPR r 6.15. I find that it has not done so. This is a case to which the remarks of Carr LJ at para 84 of Good Law Project and Underhill LJ at para 101 both of which I have quoted are entirely apposite. The Claimant is seeking to deprive the Defendant of a limitation defence. The error which led to the failure may have been trivial and the results are harsh but that is a necessary consequence of the regime and the importance of there being “bright lines”. I therefore decline to exercise my discretion.[50]Mr Francis on behalf of the claimant realistically recognised that, if he did not succeed under CPR r 6.15, he would not succeed in obtaining an extension of time under CPR r 3.1(2)(a).[51]I accordingly set aside the first claim form for want of jurisdiction by reason of invalid service.

(e) Whether the second claim was filed in time;

[52]In the light of my finding that the date of the decision was 25 March 2025 the second claim was one month out of time as it was filed on 25 July 2025. CPR r54.5(1) requires that a claim form must be filed promptly and, in any event, no later than 3 months after the grounds to make the claim first arose. I have the power to extend time under CPR 3.1 (2)(a) but I must be satisfied that there is good reason so to do bearing in mind the general importance of strict adherence to time limits in the field of judicial review.[53]It is common ground that it would not, of itself, be an abuse of process to permit the claimant to bring the second claim and that I should instead consider all the circumstances including whether there has been an adequate explanation for the delay, the importance of the issues, the prospect of success, whether an extension will cause substantial hardship or prejudice to the defendant or be detrimental to good administration (see Administrative Court Guide 2025 para 6.4.4.2).

Submissions of the parties

[54]It would be very difficult for me to find that there was an adequate explanation for the delay, given that the claimant had in fact filed the first claim in time but then lost the ability to rely on it because of ineffective service. Mr Francis acknowledged his difficulty in that regard but urged me also to consider the fact that the claim was not stale and, beyond the loss of the limitation defence, hearing it would not cause hardship to the defendant. He further submitted that it was an arguable claim and that that fact too should be taken into account.[55]Mr Hoar opposed the extension on the basis that to allow it to proceed would undermine the importance which attaches to time limits in judicial review claims. He submitted that any parallel sought to be drawn with applications under section 33 Limitation Act 1980 for the extension of time limits in personal injury claims was mistaken. He relied by analogy on the observations of Carr LJ in Good Law Project atpara 63. She observed that it was unhelpful to cross-refer to authorities on the exercise of the discretion under that section. That was in the context of the question of a good reason under CPR r 6.15, but Mr Hoar submitted that Carr LJ’s reasoning applied equally to this situation. I agree. Under section 33 the question is one of broad equity having regard to the specific factors listed in the section. Under CPR r 6.15 and, I find, in this context under CPR r 3.1(2)(a), the question is whether there is a good reason to make the order validating invalid service or extending time.[56]Both parties agreed that I should consider the merits of the claimant’s claim as part of my consideration of whether to extend time. (f). Whether the claimant has an arguable claim

Submissions of the parties on the merits

[57]On behalf of the claimant, Mr Francis in his oral submissions on the merits helpfully distilled the issues I had to consider into two,(i) whether the defendant’s decision, being a disposal of land, was amenable to judicial review, as opposed to being purely a matter of private law; and(ii) whether, in the absence of a concluded agreement, the claimant could have a legitimate expectation either that it would be granted a lease or at least that it would be consulted. He encouraged me not to delve too deeply into the authorities, given that the parties were still at the permission stage.[58]The essence of the claimant’s claim is encapsulated in the passage from the 3 June 2025 letter which I quoted under paragraph 11 above. The claimant relies on the fact that the land was designated for recreational use, that the claimant had invested in the premises and that the claimant and the defendant had worked together in the past to upgrade the facilities. The defendant’s change of heart came without warning.[59]Mr Francis made submissions on the authorities referred to in the 3 June 2025 letter, in particular Molinaro and Trafford. In the first of those cases the decision was one made for the purpose of giving effect to the defendant authority’s planning objectives. The judge (Elias J. as he then was) found that that was sufficient to justify the decision being subject to judicial review if it were found that there had been an abuse of power or a denial of a legitimate expectation (see paras 65-71). This case does not involve planning policy but I was encouraged by the claimant to find that a similar approach should be adopted.[60]In Trafford His Honour Judge Stephen Davies, sitting as a judge of the high court, had a similar situation to deal with, the renewal of a tenancy. He relied on the reasoning in Molinaro in support of the proposition that there might be cases where the decisions of public authorities relating to contracts could be challenged for reasons other than fraud, corruption or bad faith. Having reviewed the authorities he offered this summary (para 55):
“Having considered these authorities my conclusions are as follows: (1) In a case such as the present, involving a challenge to a decision of a public body in relation to a contract, it is necessary to consider: (a) by reference to the contract in question, to the relevant statutory power, to the statutory framework (if relevant), and to all other relevant matters, whether or not, and if so to what extent, the defendant is exercising a public function in making the decision complained of; (b) whether, and if so to what extent, the grounds of challenge involve genuine and substantial public law challenges to the decision complained of, or whether, and if so to what extent, they are in reality private law challenges to decisions made under and by reference to the terms of the relevant contract. (2) In a case involving a challenge to a decision of a public body acting under a statutory power but in relation to a contract and in the absence of a substantial public function element, a claimant will nonetheless normally be entitled to raise genuine and substantial challenges based on fraud, corruption, bad faith, and improper motive (in the sense identified by De Smith of the knowing pursuit of an improper purpose). (3) The extent to which a claimant will be entitled to raise genuine and substantial public law challenges beyond those limited classes will depend on a careful analysis of all of the relevant circumstances so as to see whether or not there is a relevant and sufficient nexus between the decision in relation to the contract which is challenged and the grounds complained of.”
[61]The facts in Trafford were different to those in this case. The decision there was a decision by the defendant local authority not to renew a tenancy because the claimant firm’s business involved litigating tripping cases against it. The judge held that the decision to refuse to renew the tenancy had not been taken for a proper purpose and was amenable to judicial review. There is no similar improper purpose argument advanced in this case.[62]On behalf of the claimant Mr Francis invited me to find that the defendant’s decision not to proceed involved ‘conspicuous unfairness’, one which the defendant was precluded from making either at all, certainly without consultation. In the Claimant’s submission a breach of a legitimate expectation could be an abuse of power.[63]Mr Francis accepted that this case did not involve a decision to change the designated use of the land, which both parties agreed would attract public law scrutiny. However, he maintained that it was not possible to divorce an occupier such as the claimant who had been using the land in line with its purposes from the use itself. In this case the claimant had a legitimate expectation after the defendant’s decision of 17 April 2024 that it would go ahead with the renewal of the lease. As a matter of proper administration and public morality it should not be permitted to act in the same way as a private party.[64]The defendant relies on the fact that there are private law remedies potentially available to disappointed parties in negotiations for the sale or lease of land. They have developed so that they are available when their threshold conditions are met. The court should not lightly infer that the claimant has a legitimate expectation to a public remedy simply because he does not meet the conditions for a private law remedy. Absent a strong indicator of a public law element, this is not a proper arena to litigate such disputes. Mr Hoar relied on R v Bolsover DC ex p. Pepper [2001] LRG 43 in particular for the proposition that a local authority which exercises its statutory powers to sell (or not to sell) land does not thereby render its decision a public law matter. The appropriate test is whether the local authority was performing a public law function. Normally it is not and there must be an additional factor, see paras 30-33 of Bolsover.[65]Mr Francis acknowledged that superficially there was a parallel between this case and the situation in Bolsover but maintained that the discussions there were much less advanced and that that was a material distinction.

Discussion of the merits

[66]I have started my consideration of whether the claimant’s claim is arguable by going back to the defendant’s 17 April 2024 decision to sell the land to the claimant. It is clear from the reasons for the officer’s decision that, like the decision in Bolsover, there was no public element to the renewal of the lease. The question therefore is whether there is anything on which to base an argument that the change of heart and the decision not to grant a renewal to the claimant had a public law element to it which the original decision did not. There is, I find, nothing on which to base that argument. The defendant changed its mind and decided not to lease the land to the claimant. There is nothing inherent in that on which to base an argument that the decision involved considerations of public policy, an abuse of power or any of the other categories which might render it susceptible to judicial review. The question of whether it had grounds to do so is not amenable to scrutiny unless it can be shown that the defendant was exercising a public function or abusing its power.[67]I do not accept the claimant’s argument that the history of occupation by the claimant means that the decision to renew imports the kind of public law considerations which would be engaged if the user of the land were changed. The identity of the lessor and the user of the land are two different things. There is no genuine and substantial challenge on the basis of fraud, corruption, bad faith or improper motive.[68]I further do not find that the Claimant’s claim that it had a legitimate expectation of a lease (or consultation on a change of heart) is arguable. It expected to be granted the lease and may have a legitimate sense of grievance, both that that did not occur and that the news was delivered abruptly in the 25 March 2025 letter. That is not the same as a legitimate expectation capable of generating public law rights.[69]For the reasons set out above I would not have found the claimant’s claim arguable on the merits. (g). Conclusions on the issue of extending time for the second claim[70]I have not found a good reason to extend time for filing the second claim. My reasons for that are that the second claim was not made promptly, that there was no good reason for the delay, the issues whilst important to the parties, do not have any wider significance. I do not consider the claim arguable. Whilst the prejudice to the defendant is confined to the loss of a limitation defence, it is detrimental to good administration to permit the claim to continue.[71]My conclusions are set out below in summary,a. I find that the date of the decision was 25 March 2025;b. I find that the first claim was filed within time;c. I find that the first claim was not served within time;d. I do not find good reason to authorise service by alternative means or to extend time for service of the claim form in the first claim;e. I do not find good reason to extend time for filing the second claim;f. I would have found it was not arguable that the decision was amenable to judicial review and not arguable that the Claimant had legitimate expectations either of a lease or of being consulted.

order

a. What the decision to be judicially reviewed was and when it was made (the two matters being linked);b. Whether the first claim was filed in time and, if not, what the consequences of that are;c. Whether the first claim was served in time;d. If not whether I should make an order either under CPR r 6.15(2) or CPR r 3.1(2)(a);e. Whether the second claim was filed in time;f. Whether the claimant has an arguable claim;g. Conclusions on the issue of extending time for the second claim.