Judges allow appeal by minister over extension of time for service of statutory review claim form following court office delays

The Court of Appeal has allowed an appeal by the Secretary of State for Housing, Communities and Local Government over a Deputy High Court judge’s decision to extend time for the service of a claim form where the underlying claim was a planning statutory review under s.288 of the Town and Country Planning Act 1990.

Lord Justice Coulson said this had become “a contested issue in recent times, with as many as six first instance decisions on the point in the last 18 months”.

The appeal also raised wider questions concerning the operation of CPR 7.6(3), and in particular the proper approach to delays by a court office in issuing a sealed claim form.

In his judgment, Lord Justice Coulson noted: “It is a sad but unavoidable fact of life that court offices do not always act promptly or get things right on their own.

“They are staffed by civil servants, not judges, and there are rarely lawyers involved. The staff will not necessarily know what time limits apply to which claims.”

The case concerned an appeal by the Secretary of State against a High Court decision in favour of the respondent, Bryan Rogers.

Karen Ridge, sitting as a deputy High Court judge, concluded that the failure to serve a sealed claim form in the statutory period of six weeks was due to the delays by the Manchester Administrative Court Office and therefore "outside the control" of Mr Rogers and his solicitors.

She extended time for service to the last date on which the claims were served upon the appellant and dismissed an application for a declaration that the court had no jurisdiction to hear the claim.

Mr Rogers was seeking to appeal an enforcement notice issued by South Staffordshire District Council and its linked refusal to grant planning permission for a development at Penkridge. An inspector later dismissed Mr Rogers’ appeal.

He brought two challenges: a planning statutory review under s.288 of the Town and Country Planning Act 1990 and an appeal against the enforcement notice under s.289. The time limits for the service were 4 May and 20 April 2023 respectively.

On 18 April 2023, Mr Rogers filed a claim form, an appellant's notice and a statement of facts and grounds.

The covering email referred to both the appeal under s.289 and the planning statutory review under s.288, and said they "are inextricably linked as they both relate to the same planning decision and need to be listed together".

Although the email was marked with 'high importance’, no mention was made of the imminent expiry dates and it was unclear which of the documents related to the appeal, the review, or both.

The 20 April expiry date for the enforcement appeal came and went without any further action.

On 2 May 2023, Mr Rogers’ solicitor - who is not named in the judgment - said he would be "grateful if the court could kindly acknowledge receipt of our claim". There was no mention of the 4 May 2023 deadline, or that the claim form needed to be issued immediately to be within the deadline.

A series of telephone calls between the solicitor and court office followed but not until 18 May was there any mention of urgency.

Further confusing calls and emails ensued and only on 21 June did the Secretary of State first become aware of the s.288 claim

Coulson LJ said two grounds of appeal were raised. First, that Judge Ridge erred in concluding that the failure to serve the claim form in time was due to matters outside Mr Rogers’ control.

Secondly, that she erred in failing to consider properly the prejudice to the Secretary of State caused by the loss of a limitation defence; and the lack of promptitude by Mr Rogers in making the application to extend time.

Coulson LJ said Mr Rogers had to show he had taken all reasonable steps to serve the claim form by 4 May but had been unable to do so; and that he had acted promptly in making the application for an extension of time.

He said: “No substantive reasons for the court office's wholesale failure to seal and issue the s.288 claim form within that sort of period has been provided.

“A promise to do it 'after lunch' in mid-May was slowly replaced with an unexplained further delay of two months. Whilst I understand that there will have been confusion caused by the issuing of the s.288 statutory review and the s.289 appeal at the same time, with a concomitant lack of clarity as to which documents related to which application, that could and should have been resolved in one conversation with the respondent's solicitors.”

It was submitted for Mr Rogers that he had taken all reasonable steps by filing the documents in good time and nothing else was necessary to satisfy the test of 'all reasonable steps’.

Coulson LJ noted: “A claimant can never safely sit back and do no more, no matter how early the documents are filed.”

‘Taking all reasonable steps’ required the applicant to alert the court when the documents must be issued and why, and chasing by email and telephone if there had been no sign of the documents after two or three working days, the judge said.

As a deadline neared an applicant should also reiterate “clearly, by personal attendance (if possible) at the court office, telephone or email, when precisely the relevant time period for service expired and the consequences of failure to issue in time”.

Coulson LJ said Mr Rogers’ solicitors “did not do any of these things”. He added: “It does not matter how early the documents are filed: a solicitor who fails to notify the court of the particular urgency of the case and the need for service by a particular date runs the obvious risk that he has not taken all reasonable steps to effect service in time.”

Having failed to flag up deadlines the solicitors made matters worse by not making clear which documents related to which application.

He said of court office staff “on occasion, they will need to be energetically chased…they can only be chased by a claimant or their representatives: the defendant is probably unaware of the claim.

“If a claimant does not set out clearly to the court office at the outset what the time limits are, and then compounds that error by failing to react to the inactivity of the court office by energetically chasing the issue of the claim form, they are almost certainly not taking all reasonable steps to serve the claim form in the six-week period.

“In the present case, the respondent took no steps at all to comply with the relevant service rule, other than filing the documents in good time on 18 April and sending the bland email of 2 May. On any view, that was not nearly enough.”

He concluded that on a proper application of the relevant principles, Mr Rogers failed to take all reasonable steps to serve within the six-week time limit and allowed the Secretary of State’s appeal.

Lord Justice Birss and Sir Keith Lindblom both agreed.

Mark Smulian