Introduction
Given all that was going on in the early days of the UK Coronavirus Lockdown, it would have been easy to have missed the High Court’s judgment in R (Packham) v Secretary of State for Transport. This was television presenter and environmental campaigner Chris Packham’s well publicised judicial review of the Government’s decision to continue with the HS2 rail project following the Oakervee Review, a case that has now proceeded to the Court of Appeal.
This case is a reminder that promptness is still alive and kicking in judicial review cases where the time limit remains 3 months and the underlying rationale for which is perhaps an echo of planning cases past. With the Government committing to infrastructure delivery as a key part of its recently announced “New Deal for Britain”, the promptness arguments that this case resurrects may only become more relevant going forward.
Ask
HS2 is, of course, the proposed national high speed railway network to connect London, Birmingham, Manchester and Leeds authorised by a 2017 Act of Parliament. It is probably fair to say that, to date, the project has been somewhat contentious, having been the subject of legal challenges dating back to the national public consultation on the strategic case and proposed route for phase 1 in 2011.
Following increasing concerns about the project’s cost and deliverability, last summer the Government asked Douglas Oakervee to oversee a review as to whether and how HS2 should proceed, notwithstanding that works had already started on the project.
On 11 February 2020, the outcome of the Oakervee Review was published with various recommendations and, on the basis of this report, the Prime Minister announced that HS2 would continue the same day.
Please, Please, Please Let Me Get What I Want
On 27 March 2020 Chris Packham commenced proceedings to judicially review the Secretary of State’s decision to support HS2 on a number of environmental grounds. At the same time he also sought an urgent interim injunction to prevent the carrying out of associated clearance works in six different woodlands. Since these works were due to occur within a few days, the hearing was expedited and took place remotely on 3 April 2020, with the Court considering both the merits of the judicial review claim and the injunction application together.
Judgment was handed down remotely on 6 April 2020. Both the judicial review and injunction applications were refused.
That judgment was appealed by Mr Packham and we understand that permission to appeal has recently been granted, with a rolled up hearing due to take place in the Court of Appeal in early July.
These Things Take Time
The focus of this blog is on a preliminary point in Packham that the High Court picked up of its own volition – namely whether the claim had been made promptly in accordance with Civil Procedure Rules 54.5(1).
Taking account of the established body of case law as to the meaning of ‘promptly’, the Court decided that the Claimant had failed to act promptly as required by the Civil Procedure Rules. It concluded that, on this basis alone, the case should be dismissed, albeit the judgment did then go on to consider (and dismiss) each of the other grounds of claim as well.
What is noteworthy about the Court’s finding on promptness is that the claim was filed well within the 3 month period following the Secretary of State’s decision – 6 weeks and 3 days in fact. (The 3 month period, rather than the standard 6 week period for planning cases, applies here because there was no statutory basis for the Government’s decision to proceed with HS2 on 11 February 2020). The Court, however, highlighted the existence of the 6 week time limit in planning judicial review cases and for challenges to development consent orders for nationally significant infrastructure projects, noting that “whilst the decision was not a development consent, HS2 is regarded as a project of national importance and the proposed judicial review seeks to impede the implementation of the phase authorised by the 2017 Act”.
Drawing on this comparison, the extensive pre-action correspondence between the parties, and the fact that the decision on 11 February 2020 had been heavily trailered in the press, the Court reached the view that there had been undue delay in making the challenge.
That Joke Isn’t Funny Anymore
On the face of it, the Court’s finding on promptness looks quite harsh – after all the claim was comfortably within the 3 month judicial review period that applied to this particular decision and only just outside the 6 weeks that would have applied had it been a decision pursuant to the Planning Acts.
Based on our own experience, however, it seems inevitable that the Court’s position on promptness would be linked to its overall view of the claim and, given the need for certainty in public decision-making, the fact that the Courts generally do not like claims which appear to be attempting to revisit earlier decisions/authorisations or otherwise engineer a route to challenge out of time[1]. As the Court itself noted, here the project was authorised by an Act of Parliament from 2017 and that was ultimately what the claim was seeking to stop.
Stop Me If You Think You’ve Heard This One Before
We will, of course, have to see what the Court of Appeal has to say on the matter of promptness in this particular case.
As a broader comment, it seems to us that the High Court’s decision on promptness in Packham is an echo of planning cases past when there was a disparity between the 6 week time limit for statutory challenges to Secretary of State decisions and the 3 month period for judicially reviewing local planning authority decisions. That disparity lead to arguments that planning judicial reviews were not prompt unless they were brought within 6 weeks of the decision. These arguments were of course definitively ended in 2013 with the reduction of the time limits for bringing a judicial review from three months to six months in planning cases.
Notwithstanding the current appeal, the High Court’s approach in Packham now raises the prospect that in future judicial review cases of infrastructure decisions outside the Planning Acts, promptness will be measured according to the 6 week time limit that would apply to a planning case – or at least there will be arguments raised around this in the same way that there were in planning cases past. And, with the Government now committed to infrastructure delivery as part of its economic growth strategy, the promptness arguments that this case appears to resurrect will surely only become even more pertinent going forward.
For some legal arguments then, there is a light that never goes out?
[1] - We have experience of a number of judicial review claims of this nature. See for example: https://www.bclplaw.com/en-GB/insights/the-need-to-play-by-therules-in-judicial-review.html
