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J8: Judicial review: procedure

Time limit: 3 months and promptly

 

“(1) The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.” (CPR 54.5)

“(1) A person seeking permission to bring judicial review proceedings before the Upper Tribunal under section 16 of the [Tribunals, Courts and Enforcement Act 2007] must make a written application to the Upper Tribunal for such permission.

(2) Subject to paragraph (3), an application under paragraph (1) must be made promptly and, unless any other enactment specifies a shorter time limit, must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision, action or omission to which the application relates.” (Upper Tribunal Rules 2008 (SI 2008/2698), r.28)

Time limit: 3 months and promptly​

- Time limit runs from when decision has legal effect

"[60] The reasoning in para 43 indicates that Lord Steyn did not consider his conclusion that time ran from when the decision had legal effect rather than from an earlier point when the decision was foreseeable or provisional, was limited to the planning context. At paras 44 – 50 he identified a number of factors that pointed against the Greenpeace approach (which was overruled). In particular, he stressed the desirability of a clear and straightforward interpretation that would yield a readily ascertainable starting date, whereas the lack of certainty inherent in the Greenpeace approach was “a recipe for sterile procedural disputes and unjust results” (para 49).

...

[90] However, in my judgement these would be unrealistic contentions given there had been no legally effective decision taken by that point. Consistent with the decision in Burkett, the sheer fact that it may have been possible to bring a challenge to an anticipated or foreseeable future decision does not mean that the time for challenging the decision ran from before the time when the decision had legal effect (paras 58 - 60). The decisions complained of did not have legal effect until the Direction was brought into force from 7 May 2022." (R (oao Tax Returned Limited) v. HMRC [2022] EWHC 2515 (Admin), Heather Williams J)

- Time limit runs from when decision has legal effect

- Sensible approach to commencement of time limit

 

“I do not think it fair to blame the appellant for not having tried to launch judicial review proceedings earlier. It is not obvious to me that the right approach to difficult problems such as this is to rush off to the administrative court. Most people try to resolve their difficulties over access to public services by negotiation and agreement with the authorities. Very few have the knowledge or the resources to approach the administrative court. If all the people who were trying to persuade public authorities to comply with their legal obligations did so, the court would soon be swamped. Better by far to try and achieve a negotiated solution. Indeed, while negotiations are going on, the court may well refuse leave on the ground that the application is premature.” (A v. Essex County Council [2010] UKSC 33, §117)

- Sensible approach to commencement of time limit

- Promptness: depends on the nature of the decision challenged

 

“[45] The claim was filed on 6 May 2016, two days short of the three month period from the date of that settlement. It is trite law that CPR 54.5 does not provide a three month time limit for commencement of judicial review proceedings; claims have, in any event, to be filed "promptly". What is “prompt” depends on the nature of the challenge. This was in substance, a challenge to a budgetary decision of central government. In my judgment it is self-evident that such a challenge has to be brought very promptly indeed since it potentially threatens the budgetary arrangements of the Government for an entire year.” (R (oao Liverpool CC) v. Secretary of State for Health [2017] EWHC 986 (Admin), Garnham J)

 

“[31] ... Prompt action is necessary so that the parties, and the public generally, know whether they are able to proceed on the basis that a decision is valid and can be relied on and so that they can plan and make business decisions accordingly. In the context of a challenge to a decision affecting the sale of a significant, publicly-owned asset, the wider public interest, as well as the interest of the bidders, provide a real need to ensure that any challenge which may affect the sale process is resolved quickly.” (R (oao Sustainable Development Capital LLP) v. Macquarie Corporate Holdings Pty Ltd [2017] EWHC 771 (Admin), Lewis J)

- Promptness: depends on the nature of the decision challenged
- Promptness: absence of prejudice predominant consideration

- Promptness: absence of prejudice predominant consideration

 

“[37] ... Indeed, when considering whether an application is sufficiently prompt, the presence or absence of prejudice or detriment is likely to be the predominant consideration. The obligation to issue proceedings promptly will often take on a concrete meaning in a particular case by reference to the prejudice or detriment that would be likely to be caused by delay.” (Maharaj v. National Energy Corporation of Trinidad and Tobago [2019] UKPC 5)

- HMRC should identify any prejudice at the outset

 

“[41] ... Nowadays the pre-action letter of response allows a respondent or interested party to draw attention to the possibility of any prejudice or detriment. Compliance with pre-action protocols and the Civil Procedure Rules should ensure that in most cases issues of prejudice or detriment to good administration are identified at the outset...” (Maharaj v. National Energy Corporation of Trinidad and Tobago [2019] UKPC 5)

- HMRC should identify any prejudice at the outset

Extension of time

Extension of time

- Test is good reason for extending time (prejudice or detriment important factors)

 

“[38] In the same way, questions of prejudice or detriment will often be highly relevant when determining whether to grant an extension of time to apply for judicial review. Here it is important to emphasise that the statutory test is not one of good reason for delay but the broader test of good reason for extending time. This will be likely to bring in many considerations beyond those relevant to an objectively good reason for the delay, including the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest. Here the Board finds itself in agreement with the observations of Kangaloo JA in Abzal Mohammed (para 25) cited above para 17. In Trinidad and Tobago these are all matters to which the court is entitled to have regard by virtue of subsection 11(3). More fundamentally, where relevant, they are matters to which the court is required to have regard.

[...]

[43] For these reasons the Board accepts the submission of Mr Fordham on behalf of the appellant that, far from constituting an insulated residual discretion, considerations of prejudice and detriment are capable of being of key relevance to the issues of promptitude and extension of time.

[...]

[47] The Board is, however, unable to endorse without reservation the approach followed by Kangaloo JA in Abzal Mohammed . It is not the case that “it is only if there is both undue delay and prejudice or detriment that the Court may refuse to grant leave” (per Kangaloo JA, para 21). Here the Board agrees with the observation of Jamadar JA in the Court of Appeal in the present case (para 51) that Kangaloo JA in Abzal Mohammed overstated the position somewhat. While prejudice or detriment will normally be important considerations in deciding whether to extend time, there will undoubtedly be circumstances in which leave may properly be refused despite their absence. One example might be where a long delay was wholly lacking in excuse and the claim was a very poor and inconsequential one on the merits, such that there was no good reason to grant an extension." (Maharaj v. National Energy Corporation of Trinidad and Tobago [2019] UKPC 5)

- Test is good reason for extending time (prejudice or detriment important factors)

- Prejudice: what would HMRC have done differently?

 

“[35] There is no real prejudice to the Council caused by the delay as its case is not that if the judicial review application had been brought earlier, it would not have incurred the expense which it did because the Council has continued incurring expenses even after the present judicial review claim was brought. I assume that it would have acted in the same way if the judicial review claim had been bought more promptly. So I would not refuse permission on the grounds of delay.” (R (oao Croydon Property Forum Ltd) v. Croydon LBC [2015] EWHC 2403 (Admin), Sir Stephen Silber)

- Prejudice: what would HMRC have done differently?

- Pursuing an FTT appeal

 

“[13] Initially, I was unimpressed by the period of time taken by the claimant to bring this claim for judicial review. However, analysing the chronology, the issue of expedition was, in fact, flagged up by the claimant on 6 June 2017. The grounds attached to the Notice of Appeal expressly referred to expedition. The decision on expedition was not given by the First-tier Tribunal until 5 December 2017. The claimant could, in my judgment, put forward the argument…that it was reasonable to await the outcome of the First-tier Tribunal decision and then to apply for judicial review with a view to seeking interim relief. I accept that argument and that explains the delay between the end of the three months from 18 May decision to a period of 5 December 2017. I also accept [the claimant’s] submission that the claimant would need a reasonable period of time thereafter in order to bring the judicial review claim. The decision refusing expedition did not restart any 3-month period.” (R (oao Manhattan Systems Limited) v. HMRC [2018] EWHC 1682 (Admin), Lewis J)

“The delay in seeking judicial review of that assessment is because the claimant initially appealed to a Value Added Tax tribunal. But on 20 July 2000 the tribunal decided that there was no right of appeal since the claimant's case depended on an extra-statutory concession and it was "not within the jurisdiction of the tribunal, which is appellate in nature, to review the Commissioners' application of the [concession] any more than it is within our jurisdiction to review the Commissioners' “care and management' powers, such as their conferring and withdrawing the benefits of extra-statutory concessions”. On 15 August 2000 this application for judicial review was made. On 18 September 2000 Richards J granted permission to proceed notwithstanding the delay since he was satisfied that there was a good reason for it. Mr. McKay, who appeared before me on behalf of the Commissioners, indicated that he did not propose to take any point based on delay.” (R (oao Greenwhich Property Ltd) v. CCE [2001] EWHC Admin 230)

- Pursuing an FTT appeal

- Reasonably waiting for final decision

 

“[107] In our judgment, on the facts of this case, where each of the decisions was a step along the path required by statute when a direction under section 38 is being contemplated by a PCC, and where the Chief Constable argues that a flawed approach by the PCC underlies all the decisions made, it is understandable that the Chief Constable should wait until the final decision before launching proceedings. Those circumstances provide a good reason to extend time. We anticipate that PCC would have alleged a challenge was premature if launched before the process was completed.” (R (oao Crompton) v. Police and Crime Commissioner for South Yorkshire) [2017] EWHC 1349 (Admin), Garnham J)

- Reasonably waiting for final decision

Alternative remedy

Alternative remedy

- FTT usually exclusive forum for grounds within its jurisdiction

 

“[57] In my judgment the principle is applicable in the present tax context. The basic object of the tax regime is to ensure that tax is properly collected when it is due and the taxpayer is not otherwise obliged to pay sums to the state. The regime for appeals on the merits in tax cases is directed to securing that basic objective and is more effective than judicial review to do so: it ensures that a taxpayer is only ultimately liable to pay tax if the law says so, not because HMRC consider that it should. To allow judicial review to intrude alongside the appeal regime risks disrupting the smooth collection of tax and the efficient functioning of the appeal procedures in a way which is not warranted by the need to protect the fundamental interests of the taxpayer. Those interests are ordinarily sufficiently and appropriately protected by the appeal regime. Since the basic objective of the tax regime is the proper collection of tax which is due, which is directly served by application of the law to the facts on an appeal once the tax collection process has been initiated, the lawfulness of the approach adopted by HMRC when taking the decision to initiate the process is not of central concern. Moreover, by legislating for a full right of appeal on fact and law, Parliament contemplated that there will be cases where there might have been some error of law by HMRC at the initiation stage but also contemplates that the appropriate way to deal with that sort of problem will be by way of appeal.” (R (Glencore Energy UK Ltd.) v HMRC Revenue and Customs [2017] EWCA Civ 1716, Sales, Gloster, Singh LJJJ)

- FTT usually exclusive forum for grounds within its jurisdiction

- JR for grounds of challenge not within FTT jurisdiction

 

 “[6] It is unfortunate that, for whatever reason, the course taken in the case of the first appellants was not taken in the case of the second appellant. Were either of his contentions in the present proceedings to prevail, it would follow that the commissioners invested a large amount of time – as well as a conspicuous degree of care – in application to the issues of his residence and ordinary residence of principles inapplicable to them. In their Decision they expressly noted that their function was to apply the law rather than the guidance in the booklet. But, whereas issues of fact between the Revenue and the first appellants in relation to their circumstances in 2001-02 remain unresolved, the now conclusive resolution by the commissioners of the issues of fact between the Revenue and the second appellant in relation to his circumstances from 1992-93 to 2003-04 at any rate throws the effect of these proceedings into sharp relief. For, although it remains an open question whether, upon application of the ordinary law, the first appellants were resident and ordinarily resident in the UK during the year relevant to them, we know that, upon application of the ordinary law, the second appellant was resident and ordinarily resident in the UK during the years relevant to him. As the appellants rightly stress, a legitimate expectation that the ordinary law will apply to them is a matter of no legal significance in that it adds nothing to the right of every citizen to due application to him of the ordinary law.” (R (oao Davies and another) v. HMRC [2011] UKSC 47​)

“[58]...In [re Preston [1985] 1 AC 835], the allegation was that the Inland Revenue Commissioners had made a promise not to collect tax in certain circumstances (i.e. had created what would today be called a legitimate expectation not to collect an amount of tax), and although the allegation was not made out the House of Lords was prepared to accept that such a claim could be made by way of judicial review. In fact, the tax appeal process would have been incapable of dealing with such a claim of unlawfulness on the part of the commissioners, which did not go to the merits of whether the criteria for imposition of tax were or were not met (a subject fit for examination on appeal) but rather to enforcement of fundamental rule of law standards against the commissioners if they had in fact made a promise not to initiate the tax collection process in the first place.” (R (Glencore Energy UK Ltd.) v HMRC Revenue and Customs [2017] EWCA Civ 1716, Sales, Gloster, Singh LJJJ)

"[8] There are principles of common law governing when claims for judicial review may be brought. One set of principles concerns the fact that generally judicial review is not appropriate when there are other adequate alternative remedies available. Where Parliament has created a statutory appellate system to hear appeals against decision, that system, rather than judicial review, is generally appropriate and permission to apply for judicial review is generally refused because of the availability of an alternative remedy which is adequate (see. e.g. R (Glencore Energy UK Ltd.) v HMRC Revenue and Customs[2017] EWCA Civ 1716). There are cases where the particular grounds of challenge available before a tribunal are narrower than those available in judicial review, in which case judicial review may be appropriate in relation to those other grounds (see, for example, CC & C v HMRC [2014] EWCA Civ 1653). That particular situation does not arise here because all the grounds of challenge in relation to the substantive decision to deregister would be available in the First-tier Tribunal..." (R (oao Manhattan Systems Limited) v. HMRC [2018] EWHC 1682 (Admin), Lewis J)

- JR for grounds of challenge not within FTT jurisdiction

- Application to Adjudicator or Parliamentary Ombudsman may be alternative remedy

 

"[52] The Respondent contended that there is an alternative remedy open to the Applicant, namely an application to the Adjudicator, an impartial and independent referee whose role is to consider whether or not the Respondent and other similar bodies have handled complaints properly and have given a reasonable decision. When the Adjudicator considers that the Respondent has fallen short, she will recommend what it needs to do to put matters right, including the payment of compensation. Mr Dunn had of course specifically alerted the Applicant to the possibility of referring its case to the Adjudicator in his letter of 17 May 2012.
[53] For the Respondent, Mr Singh pointed out also that, in the event that the Applicant is dissatisfied with the outcome of an application to the Adjudicator, it would be open to it to approach the Parliamentary and Health Service Ombudsman (PHSO). The PHSO would have the power to direct the payment of appropriate compensation by the Respondent to the Applicant.
[54] Miss Graham-Wells contended that this Court was the Applicant's last resort, since no other avenue it can pursue will offer an adequate, suitable or otherwise effective remedy. She argued that the case involves matters of law with which neither the Adjudicator nor the PHSO could deal. Neither could they reach conclusions as to whether the disputed decision was irrational, unreasonable, conspicuously unfair or otherwise in breach of natural justice, procedural fairness and/or an abuse of power. Miss Graham-Wells also submitted that, since the Adjudicator and the PHSO only have the power to make "recommendations" to Government Departments, there is no guarantee that, even if they recommended payment of substantial compensation to the Applicant, the Respondent would comply with that recommendation. Only this Court, she said, could bind the Respondent.
[55] The Respondent acknowledges that it is not open to the Adjudicator or the PHSO to consider disputes of law. However, Mr Singh submitted that they would be well able to consider the adequacy of the Respondent's findings on the central questions raised by the Applicant's judicial review claim, namely whether the Applicant had demonstrated that it had suffered an economic loss in the relevant period and, if so, whether the Respondent was solely responsible for that loss.
[56] I do not consider that this claim involves issues of law or policy. The Applicant contends that the Respondent was wrong to apply the capping restrictions to the claim for Period 2 and that it applied the wrong Guidance when determining the Applicant's claim. However, those are not issues of law; they concern what are in essence alleged errors in the Respondent's application of its decision-making system. There is no reason why the two alternative organisations concerned could not deal with those issues. They would also be in a good position to reach a conclusion as to whether the Respondent has acted unfairly and/or improperly, as alleged by the Applicant. Moreover, the fact that the two organisations would not have the power to declare the Respondent's actions unlawful does not mean that they do not provide an adequate remedy. The organisations are able to make a recommendation for the payment of monies and that is the outcome which the Applicant is seeking. The argument that the claim involves a breach of Article 1 of the ECHR is somewhat fanciful and cannot form the basis for a decision that the Applicant has no adequate alternative remedy.
[57] In addition, the Applicant's claim involves factual issues, e.g. the dispute about the extent of the advice given to the Applicant by officers from the local VAT Office and the dispute about the nature and adequacy of the financial information provided to the Respondent by the Applicant in support of its claim. Such factual issues would be much more appropriately explored by the Adjudicator and/or the PHSO than by this Court." (R (oao NCM 2000 Ltd) v. HMRC [2015] EWHC 1342, Swift J)

- Application to Adjudicator or Parliamentary Ombudsman may be alternative remedy

- Consider whether alternative remedy is an effective and more suitable remedy

 

“Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by way of judicial review when an alternative remedy is available.” (ex p. Waldron [1986] QB 824 at 852, Glidewell LJ).

- Consider whether alternative remedy is an effective and more suitable remedy

Commencement of proceedings

 

"[19] CPR 7 is headed "How to start proceedings – the claim form". CPR 7.2 provides:
"(1) Proceedings are started when the court issues a claim form at the request of the claimant.
(2) A claim form is issued on the date entered on the form by the court."
[20] CPR 2.6 is headed "Court documents to be sealed" and provides that the court must seal the claim form on issue and that the seal may be placed on the document by hand or by printing a facsimile of the seal on the document electronically or otherwise." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Commencement of proceedings

Service of the sealed claim form (within 7 days)

"The claim form must be served on –
(a) the defendant; and
(b) unless the court otherwise directs, any person the claimant considers to be an interested party,
within 7 days after the date of issue." (CPR 54.7)

For the claimant to effect service

"[24] It is common ground that the reference to service in CPR 54.7 must be a reference to actual service (and not deemed service as identified in CPR 6.14). It is for the claimant, and not the court, to effect service of the claim form (see Practice Direction 54PD.6 which refers expressly to CPR 6)." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Insufficient to serve unsealed claim form

"[63] Further, the absence of any proper explanation as to how the mistaken view that service of an unsealed claim form could amount to valid service came about (as set out above), or who (and how many) formed it, does not advance Good Law's cause..." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Need for particular care

"[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 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." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

No duty on Defendants to warn of defective service

"[57] Provided that a defendant has done nothing to put obstacles in the claimant's way, a potential defendant is under no obligation to give any positive assistance to the claimant to serve. The potential defendant can sit back and await developments (see, albeit in the context of CPR 7.6, Sodastream Ltd v Coates [2009] EWHC 1936 (Ch) at [50(9)]). Thus, there is no duty on a defendant to warn a claimant that valid service of a claim form has not been effected (see Barton at [22] and Woodward at [44] to [47])." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

No specific power to extend time for service

"[24] There is no specific provision in the CPR empowering the court to extend time for service of a judicial review claim form under CPR 54." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Specific cases where extension may be granted do not apply to judicial review

"[29] CPR 7.5 provides for the time for "service of a claim form". Where the claim form is to be served within the jurisdiction, this is before midnight on the calendar day four months after the date of issue of the claim form. As set out above, CPR 54.7 provides for a (much) shorter time for service of claims for judicial review.
[30] CPR 7.6 makes provision for extensions of time to be granted for "service of a claim form":
"(1) The claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –
(a) within the period specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
(3) If the claimant applies for an order to extend the time for compliance 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 –
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.

...

[52] The insuperable hurdle for this primary position is the wording of CPR 7.6 which, as set out above, refers expressly and repeatedly only to CPR 7.5. Whilst this may be a lacuna in the CPR, which make no express provision otherwise for extending time for service of a judicial review claim, it is not possible to read in to CPR 7.6 what would be the necessary references to CPR 54.7." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

But principles apply by analogy: Claimant must have taken all reasonable steps to comply

"[80] The question then is how the discretion in CPR 3.1(2)(a) to extend time for service of a judicial review claim should be exercised. There is no good reason why the requirements under CPR 7.6(2) for a retrospective extension of time to serve a Part 7 or Part 8 claim form should not apply equally to a judicial review claim, and every reason why they should. Indeed, Good Law's skeleton referred to its application for an extension of time under CPR 3.1(2)(a) being made "by analogy to CPR 7.6". As set out above, promptness is an essential requirement in any judicial review claim, and particularly in a procurement challenge. The time limit of seven days for service of a judicial review claim is (far) shorter than the time limits for service of Part 7 and Part 8 claims. It would be wholly counter-intuitive in those circumstances for the extension regime for judicial review claims to be more lenient than that applicable to Part 7 and Part 8 claims.
[81] On this approach, there was no justification for an extension of time for service of the claim form. Good Law had not taken all reasonable steps to comply with CPR 54.7. Thus, whilst the Judge erred in her approach on the application under CPR 3.1(2)(a), it was an error in Good Law's favour. The outcome, namely dismissal of the application to extend time for service of the judicial review claim, remains the same." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Claimant fixed with failures of solicitors

"[61] First it is said that the Judge was wrong to find that Good Law failed to take reasonable steps to effect valid service. This is unsustainable. As was the case for example in Ideal, Good Law is fixed with the acts and omissions of its solicitors. Good Law, by its solicitors, failed to serve the claim form on the nominated address for service. The steps taken by Bindmans on 27 and 28 April 2021 were obviously inadequate; there was then a significant missed opportunity to identify and correct the error (within time) when the certificate of service came to be executed on 30 April 2021." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Methods of service

"[25] CPR 6.3 specifies methods of service of a claim form, including at CPR 6.3(1)(d) electronic communication such as email in accordance with Practice Direction 6A.
[26] Practice Direction 6A states at paragraph 4.1:
"Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means—
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving -
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) -
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Power to authorise service by alternative means

"[27] CPR 6.15 provides:
"(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service."
[28] CPR 6.15(2) was introduced following the decision in Elmes v Hygrade Food Products plc [2001] EWCA Civ 121 ("Elmes") where it was held (at [13]) that the power to authorise service by an alternative method (to be found in rule 6.8 of the Civil Procedure Rules at the time) could not be exercised retrospectively. Its object was to open up the possibility that in appropriate cases a claimant may be enabled to escape the consequences for limitation when a claim form expires without having been validly served." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Must be a good reason 

"[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 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 [9], [10] and [16].)" (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)

Power not exercised where wrong email address used but defendant aware of proceedings

"[59]... It was clear that Good Law did not take reasonable steps to effect service in accordance with the rules. The SSHSC had stated that he would accept service by email but was very clear that such service must be effected through the new proceedings address. The use of a designated email address would ensure certainty for the SSHSC in respect of all and any new claims. Good Law did not take any step to serve the sealed claim form by the specified method within the stipulated period set out in CPR 54.7. The SSHSC was aware of the contents of the claim form within the prescribed time limit for service but satisfying that criterion alone was not sufficient to justify the exercise of CPR 6.15. If the court granted the relief sought, the Defendant would suffer prejudice because it would be deprived of an accrued limitation defence. Her judgment was that there was no good reason to authorise service at an alternative place.

...

[77] Standing back, looking at the judgment in the round, I do not find that there was a failure by the Judge to take account of some material factor such as to undermine her conclusions and take the decision outside the generous ambit of her discretion. Her decision cannot be said to have been "wrong"; it was in line with the authorities, including Barton." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355, Carr LJ)

 

"[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 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." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355, Underhill LJ)

Service of the sealed claim form (within 7 days)

- Valid electronic service: must provide only one email address

 

"[76] In my judgement the consequence of the other party failing to provide a single email address (or fax number or other electronic identification) is not to give rise to a right to elect between two or more addresses that have been provided, as Ms Clement suggests. The purpose of PD 6A para 4.1 is not to mandate a form of service (by fax or other electronic means), rather it is to provide an option of effecting service in this way if the stipulated information is provided. Where the other party gives more than one email address for service, para 4.1 has not been complied with, in that the stipulated information has not been properly provided. In these circumstances the serving party cannot, as matters stand, undertake good service by electronic means. They have two options: either they can serve the Claim Form by one of the prescribed means in CPR Part 6 or they can ask the other party to clarify which is the one email address that they may use to effect service, so that para 4.1 is then satisfied. No clarification of that kind was sought in this case." (R (oao Tax Returned Limited) v. HMRC [2022] EWHC 2515 (Admin), Heather Williams J)

- Valid electronic service: must provide only one email address

- Service at wrong physical address invalid

 

"[79] The Claimants accept that the effect of CPR 6.10(b) read with the provisions I have summarised at para 46 above, is that the physical address for service was the London address. It is agreed that the Claim Form was not delivered to this address.

[80] CPR 6.7 does not assist the Claimants in the circumstances: the London address was the address provided in writing at which service would be accepted and none of the communications during the material period indicated that the Defendant’s solicitors were instructed to accept service at the Salford address. Counsel were not agreed as to whether a Government Department could agree to accept physical service at a different Judgment Approved by the court for handing down. Tax Returned Ltd v HMRC   location to that which appeared in the PD 66 list. In any event it is unnecessary for me to resolve that point as it is quite clear from the correspondence that no such agreement was purportedly made in this instance. The correspondence of 12 May 2022 indicates that the hard copy bundle was supplied to the Salford address at the Defendant’s request as a convenience to Mr Kelly; there was nothing to indicate that this was an address for service." (R (oao Tax Returned Limited) v. HMRC [2022] EWHC 2515 (Admin), Heather Williams J)

- Service at wrong physical address invalid

- Service direct to HMRC's allocated solicitor invalid

 

"[68] As Carr LJ also said in Good Law Project, service of the claim form requires the utmost diligence and care to ensure that the relevant procedural rules are properly complied with (at paragraph [63]). By the same token, in my judgement, where instructions are purported to be given, especially new instructions, regarding an important litigation step, they must be clear, logical, unequivocal and readily understood.
[69] The reasons given by Mr Levy for his reading to the effect that where a solicitor has been allocated to a case, that solicitor is the proper recipient of service, are compelling. HMRC's case is that the document has effect as a strict rule of procedure. The language of the Press Release did not assist the reader to understand that although the word "can" was used, it in truth meant "must". Further, the criticisms made by Mr Levy (which I do not repeat here) are well made. I accept, however, from Mr Gabbitas that HMRC intended that all new proceedings should be served upon the new proceedings email, essentially for the reasons given in respect of the government legal service position in Good Law Project, repeated to an extent by Mr Gabbitas. The guidance ought, in the present case, to have stated words to the effect (without intending to draft) of "if you choose to effect service by email, rather than by hardcopy, it is essential that you serve the new proceedings email with the materials first. This is so, whether or not an HMRC solicitor has already been assigned to the case"." (R (oao London Fluid System Technologies Ltd) v. HMRC [2023] EWHC 2206 (Admin), Foster J)

- Service direct to HMRC's allocated solicitor invalid

- Invalid service saved where no prejudice to HMRC

 

"[97] In all the circumstances I conclude that, on balance, there is good reason to order that the steps taken to bring the Claim Form to the attention of the Defendant constitute good service. I have found that Mr Kelly was made aware of the contents of the Claim Form on the day that it was issued (11 May 2022) and that the Defendant would suffer no prejudice as a result of retrospective validation of the non-compliant service of the Claim Form. I have decided that the Claimants did not take reasonable steps to affect service in accordance with the rules, but I have noted that there were some mitigating factors and, accordingly, these affect the weight that this factor carries.

[98] I will therefore authorise service of the Claim Form by email to Mr Kelly’s email address on 11 May 2022 in the particular circumstances of this case, pursuant to CPR 6.15(1)." (R (oao Tax Returned Limited) v. HMRC [2022] EWHC 2515 (Admin), Heather Williams J)

- Invalid service saved where no prejudice to HMRC

- Invalid service saved where reasonable belief of valid service and HMRC fully aware

 

"[74] Dealing with the matters referred to by Carr LJ in turn:
(1) whether the Claimant took reasonable steps to effect service in accordance with the rules; Answer: In the context of the wording of the Press Release and Mr Levy's understanding of its meaning, particularly in light of his experience with HMRC, yes he did take reasonable steps to effect what he reasonably understood to be required in accordance with the rules. This case was not a careless slip – up case. This is not a solicitor who did not care to inform himself, or was careless and slipshod. This solicitor took care within the system which he understood to be operating and which he had previously operated as he understood it successfully and consistently with HMRC's direction, after the introduction of the email service policy. He believed he had effected service in accordance with the "rules". In my judgement that belief was not unreasonable. Furthermore, it was suggested at one stage by HMRC, that if in doubt, Mr Levy ought to have asked for clarification. The point is, Mr Levy was not in doubt, and I have held that his absence of doubt was in all the circumstances, reasonable.

(2) whether the Defendant/his solicitor was aware of the contents of the claim form at the time when it expired; Answer: Overwhelmingly, the answer to this question is yes. There were numerous occasions on which the relevant materials reached the relevant solicitor. The purposes of service had been plainly achieved, and the case was progressing, with concessions made as to a joint acknowledgement of service, and so forth with core bundles served and no doubt considered. There is no question but that HMRC were made aware on the several occasions on which the materials were provided to them, and were able to take such steps as they believed appropriate in the proceedings – indeed acted as if those proceedings were properly brought until the last minute.

(3) the prejudice if any the Defendant would suffer by retrospective validation of non-compliant service bearing in mind what he knew about its contents; Answer: Necessarily, as in all cases the serious prejudice of losing a limitation period will fall upon the defendant. I do not underestimate the prejudice caused but, however, I balance it against the other circumstances including in particular the apparent acquiescence of HMRC in asking for extra time in which to acknowledge service, and the absence of operative carelessness on the part of Mr Levy (the later miss-filing to the GLD email address is irrelevant to the central issue here). As stated this was not a "careless mistake" case. The solicitor for HMRC here knew clearly, and early, what the issues were and what case he had to meet. Acknowledging the presence of the limitation prejudice, there is no other detriment to HMRC in allowing service by the alternative means of direct email." (R (oao London Fluid System Technologies Ltd) v. HMRC [2023] EWHC 2206 (Admin), Foster J)

- Invalid service saved where reasonable belief of valid service and HMRC fully aware

Disapproval of challenging fresh decisions by amendment

 

"[24] [Counsel for HMRC] rightly drew our attention to the Postscript in the judgment of this court in R (oao Dolan and others) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 handed down on 1 December 2020. The Court there (the Lord Chief Justice, King and Singh LJJ) emphasised the need for procedural rigour in judicial review cases. They particularly deprecated the trend towards what has become known as a "rolling" approach to judicial review in which fresh decisions which have arisen after the original challenge are sought to be challenged by way of amendment. In my judgment, to allow Cartref to amend its appeal either to challenge the legislation in its post-July 2020 form or to add criticisms about 2017 provisions which were not challenged in the judicial review claim form would be precisely to contribute towards the trend of which the Court in Dolan expressed its strong disapproval." (R (oao Cartref Care Home Limited) v. HMRC [2020] EWCA Civ 1744, Rose LJ)

Disapproval of challenging fresh decisions by amendment

HMRC's duty of candour

See also M4: Disclosure

"[12] In support of the claimants’ application for disclosure here, [the taxpayer], in addition, took me to a number of authorities to support wider propositions of principle in relation to the public authority defendant’s duty of candour and the particular need for the public authority defendant to be transparent and clear about its decision and decision making process. The public authority had to assist the court with “full and accurate explanations of all the facts relevant to the issues the court must decide” R (Quark) Fishing Ltd v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409. The court must not “be left guessing about some material aspect of the decision-making process” Abraha v Secretary of State for the Home Department [2015] EWHC 1980 (Admin) at [114], per Singh J as he then was. The public authority ought also ordinarily to exhibit documents significant to its decision. Mr Ghosh for the claimants also referred to R (oao Phoenix Life Holdings Ltd and others) v HMRC [2019] EWHC 2043 (Admin) where the court ordered disclosure in relation to the decision making process." (R (oao Refinitiv Ltd v. HMRC [2023] UKUT 187 (TCC), Judge Raghavan)

"[65] Mr Stevens’ approach was therefore to put the Secretary of State’s case as best he could, including by referring on a number of occasions to what “the Government” thought or did where there is no evidence that this was what the Secretary of State thought or did. However, in taking this  approach to what he must have appreciated was a central issue in the Claims, it is not clear that he and those who assisted him in drafting his witness statement had the following aspects of the duty of candour, as described in the judgment of Singh LJ in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812; [2018] 4 WLR 123 at [106], at the forefront of their minds:

“(3)  The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. As I said in Hoareau at para 20:

“It is the function of the public authority itself to draw the court's attention to relevant matters; …… to identify ‘the good, the bad and the ugly’. This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.”

(4)  The witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. There can be no place in this context for “spin”.”

[66] The duty of candour is fundamental to the effectiveness of judicial review because the court approaches the case on the basis that, unless the contrary is demonstrated, both sides have complied with it i.e. they have both sought to “assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide”. It should not have been necessary, in the present case, for the court to engage in detective work or to read between the lines of  Mr Stevens’ witness statement and/or draw inferences from his silence on certain points. To borrow the words of Singh LJ, in writing his statement Mr Stevens ought to have been “engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law” rather than striving for a particular result in the proceedings. Where, as here, what the Minister saw personally is legally significant, and is in issue, the duty of candour requires a departmental witness statement to set out in clear terms what material was seen by the Minister and what was not. In such a case, statements that a matter has been seen or considered by “the Government” risk obfuscating the position rather than achieving the level of clarity required." (R (oao Unison) v. Secretary of State for Business and Trade [2023] EWHC 1781 (Admin), Linden J)

HMRC's duty of candour

- Limited by the public law issues raised

 

"[13] Of particular relevance, given the factual nature of the dispute here as to the reliance HMRC’s decision-maker placed on Ground 2, is the test explained in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2001] 1 AC 650. There, the House of Lords held disclosure will be ordered where it appears “necessary in order to resolve the matter fairly and justly”. It is therefore critical to understand what “the matter” for resolution is.  

[14] That question, regarding the nature of the dispute, is also key to understanding the ambit of the principles on transparency and clarity around decision making. In agreement with Mr Bremner for HMRC, I do not accept that the cases the claimants rely on, establish a general requirement on the public authority, irrespective of the kind of public law challenge that is being made, to disclose everything about the decision-making process and all the documents underlying its decision. As the extract from Quark Fishing makes clear, the explanations given should concern “the facts relevant to the issues…”. In that case one of the grounds was that there was no proper de novo reconsideration of the relevant fishing license. It can therefore be appreciated from the particular public law challenge in that case why focus was needed on the decision-making process and the reasons and documents underlying the decision. That is also true of the other cases. In Jet2 the grounds concerned the factual issue of improper purpose. Abraha was an immigration case which concerned the legality of detention. That included issues as to the reasonableness of the length of detention and questions of what was apparent to the public authority in terms of prospects of the claimant’s removal. It is to be noted that the function of the duty of candour and co-operation was explained as helping the court to fully understand the decision making process “under challenge”. In Phoenix Life, there was a disputed question, relevant to the public law issue, as to whether the public authority had in fact made a decision. The disclosure was necessary to resolve that.  

[15] The particular extent of the duty of candour, and the necessity in a given case for disclosure will thus be sensitive to the particular public law issues raised. The key question  remains “whether, in any particular case, disclosure of documents is necessary for the fair and just disposal of the issues”. There is no dispute that question falls to this tribunal to determine." (R (oao Refinitiv Ltd v. HMRC [2023] UKUT 187 (TCC), Judge Raghavan)

Wider disclosure not necessary where the dispute is essentially legal

"[20] In reply, [the taxpayer] pointed to paragraph 51 of the SoGR to emphasise the broader public law nature of the claim.  In that paragraph the claimants set out a number of material matters which it was said HMRC failed “to take into account”. However on closer analysis, the substance of those points and their context, indicate they are all points which HMRC are said not to have taken account of in the sense of them having reached a substantively wrong view on  the relevant law and its application to the facts. In other words, they are points which go to the merits of HMRC’s legal stance on timing (Ground 1) as applied to the facts of the claimants’ situation. As paragraph 51 itself concludes by way of summary, the allegation is that HMRC’s attribution of additional profits to the claimants on the 2018 disposal “is entirely inconsistent with the substantive contractual effect of the APA” in respect of the relevant transactions. The points in paragraph 51 are not therefore points which go to what was or was not in the decision maker’s mind when he issued his decision." (R (oao Refinitiv Ltd v. HMRC [2023] UKUT 187 (TCC), Judge Raghavan)

- Limited by the public law issues raised

Expectation that public authority will comply with declaratory order

 

"[46] The Government’s compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the Government and the courts. The courts’ willingness to forbear from making coercive orders against the Government, and to make declaratory orders instead, reflects that trust. But trust depends on the Government’s compliance with declaratory orders in the absence of coercion. In other words, it is because ours is a society governed by the rule of law, where the Government can be trusted to comply with court orders without having to be coerced, that declaratory orders can provide an effective remedy. Although cases have occurred from time to time in which ministers have failed to comply with court orders (such as M v Home Office and the recent case of R (Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department [2021] UKSC 46; [2021] 3 WLR 1075), they are exceptional, and can generally be attributed to mistakes and misunderstandings rather than deliberate disregard. However, where a legally enforceable duty to act, or to refrain from acting, can be established, the court is capable of making a coercive order, as M v Home Office and Davidson v Scottish Ministers [2005] UKHL 74; 2006 SC (HL) 41 demonstrate. Furthermore, a declaratory order itself has important legal consequences. First, the legal issue which forms the subject matter of the declaration is determined and is res judicata as a result of the order being granted: St George’s Healthcare NHS Trust v S [1999] Fam 26, 59-60. In addition, a minister who acts in disregard of the law as declared by the courts will normally be acting outside his authority as a minister, and may consequently expose himself to a personal liability for wrongdoing: Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959), pp 193-194." (Craig v. Her Majesty's Advocate [2022] UKSC 6)

Expectation that public authority will comply with declaratory order
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