Too late
Public Law and Judicial Review
Following article 1 ‘Too little? Or too late?’, here is the second article of the series, concerning The Court of Appeal’s judgment in Surrey County Council v R(BC) [2025] EWCA Civ 719 is a wide-ranging exploration of the law and procedure relating to challenges to decisions about care for young people brought after the event.
Surrey appealed against the grant of permission despite the delay in bringing the claim and raised two general points. First, there was a delay in coming to Surrey at all. Second, there was inexcusable delay between the first letter before action (when Lawstop threatened to commence proceedings without further correspondence) and actually starting proceedings, a year later.
BC defended this appeal on the basis that the appellate Court, like the Courts below under CPR 54,13, had no right to set aside the grant of permission once it was made. This contention was roundly dismissed. The appellate Court was not setting it aside but was reviewing whether it was correctly given, having regard to the fact that this is a matter of judicial discretion and therefore not lightly to be overturned. However, there is no such test as a “rare” or “very plain” case before the appellate Court can intervene.
In this case, Calver J should not have granted permission. The delay was too long, and was not satisfactorily explained.
The Court reviewed the basic principles. The importance of acting promptly at all times has been repeatedly restated. Even if the applicant is unaware of the decision they want to challenge, they must act expeditiously once they become aware of it, and errors by the applicant’s lawyers will not generally amount to a good reason for delay.
The Court commented that the decision in R (Good Law Project Limited) v Secretary of State for Health and Social Care [2022] EWCA Civ 355; [2022] 1 WLR 2339 should make “salutary reading” for anyone needing to comply with the short time limits in judicial review cases.
Lawstop had sent repeated letters, demanding a response within a short period of time, and repeatedly saying that there would be an application for judicial review in the absence of a response. Surrey had responded promptly, and had provided documents. However, these were redacted, and there was an argument about the effect of the redaction on BC’s ability to bring a claim. Calver J concluded that BC’s troubles in the years running up to the letter before action, combined with the redactions, and the fact that there was – on his case – an ongoing duty – meant either that time did not run, or there should be an extension of time.
He was criticised by the Court of Appeal for the way he had approached the question, and clear guidance was given to future Judges.
First, Calver J had “somewhat unconventionally” left the question of delay to the end. The Court said
In our view, since a failure to comply with r.54(5) is a complete answer to a judicial review claim, it is usually best to deal with such a threshold issue at the outset.
Next he had failed to identify when the three month longstop period started to run. A claim for judicial review must be brough promptly and in any event, within 3 months. 3 months is the longstop, not the target.
It was agreed by BC that his claim crystallised on 18 September 2019. Thus, the claim should have been brought by December 2019 and was 2½ years out of time.
The Judge did not address this issue at all, and the Court of Appeal said
We consider that he should have done. Whenever a judge considers a submission that a claimant failed to comply with r.54.5, he or she needs to consider when the relevant longstop period started, and therefore when it stopped. In our view, it is not possible to identify properly how and why any extension of time might be justified until the relevant period of delay has first been identified.
The Court therefore held that the Judge should have found that a very long extension of time was required if the claim were not to be struck out.
Third, the Court of Appeal rejected the contention that the claim did not crystallise until BC had documents from Surrey (in February 2022). Even if that were the case, he had not acted promptly as there was another 2½ month gap before Lawstop even sent a further letter before action, and then another 3 months before the claim was lodged. Analysed in light of the requirement to act promptly throughout, this delay was culpable. There was no evidence before the Judge that BC and his legal representatives understood the duty to act promptly.
However, the assumption that getting documentation was the starting point for the 3 month period was wrong in principle.
An applicant in judicial review proceedings is not entitled to try and justify his or her delay on the basis that further information was or might be available from the respondent which would improve or affect their grounds of challenge. That is the complete antithesis of the judicial review regime, where the focus must be on the original, substantive decision, not some later ancillary event or decision.
Judicial review is not a regime where a claimant is entitled to wait, dotting every available ‘i’ and crossing every possible ‘t’, before making a claim for judicial review. If documents are potentially important and outstanding, then one possibility is for a claimant to issue proceedings, and then seek to delay the hearing of the permission application until after disclosure. What a claimant cannot do is to delay issuing proceedings in the hope that something might turn up on disclosure.
The claim, therefore, was well out of time and could only survive if an extension of time was justified.
In granting an extension of time, the Judge had failed to consider the overriding duty on BC to act promptly at every stage of the delay of 2½ years.
At no time in his brief analysis does the judge ever have regard to that obligation, or the authorities on extensions of time. Accordingly, we consider that his analysis was wrong in principle. It is therefore necessary for us to redo that exercise.
The Court accepted that BC had struggles in the first period, but he was not unaware of the facts that founded his claim against Surrey. He had not been kept in the dark about what had happened: he knew he had not been accommodated by Surrey.
Even if they were wrong about that, the Court of Appeal said, the delay from when BC sought legal advice to when he lodged a claim was inexcusable. There was absolutely no excuse for the final 6 month period of delay, when Lawstop’s failure to lodge proceedings was culpable.
In summary, therefore, we consider that the judge erred in indicating that BC was entitled to an extension of time. He did not analyse the relevant period of delay and the events which occurred during that period; he did not have regard to BC’s obligation to act promptly at all times; he wrongly reversed the burden onto SCC by way of the subsequent provision of documents; and he failed to have regard to the cause of the delay from February 2022 onwards.
Can a “continuing duty” save the claim?
One reason why the Judge granted permission for the claim to proceed despite this delay was that there was a “continuing duty”, in that BC asserted that he had been a Child in Need before his 18th birthday so that there were ongoing duties on Surrey.
The Court of Appeal commented acerbically that the Judge had not explained how that worked.
After deciding that, as a matter of fact, the duty did not arise (see the next two articles in this series), they said that the “continuing duty” argument falls away. However, even if there had been a continuing duty, it did not defeat the failure to comply with r 54.5 and bring the claim promptly.
BC accepted before the Court of Appeal that the submission made to the Judge below, that there were many cases where the Court has accepted that there has been an “ongoing breach” even where the claim was brought many years after the events, was wrong. The Judge had been taken to various first instance cases, but in each case, the Claimant was either a child or only just over 18.
The cases the Claimant had cited considered the question of delay in relation to relief, rather than whether the claim should proceed.
Further, the Court said:
in judicial reviews what matters is the challenge to a particular decision. It is not concerned with a general review of a local authority’s statutory duty. The question each time is whether the particular decision was unlawful. In the present case, therefore, we are concerned only with the decision in September 2019.
There was confusion between a “continuing state of affairs” and “accrued rights”. If BC had been owed the section 20 duty, he would have accrued rights.
If he had claimed in time, he could act on those accrued rights. But this was not a continuing state of affairs, much less a continuing duty: it was simply a situation in which BC claimed rights which had accrued to him as a result of events in the past.
The Judge had wrongly treated this like a claim in nuisance where the cause of action is continuing.
We profoundly disagree. There was no continuing cause of action. If there had been a s.20 duty, BC would have had a cause of action which arose because of SCC’s decision in September 2019. If he was not owed a duty at that time, he is not owed a duty now.
The appeal succeeded, and the claim was dismissed.
Catherine Rowlands appeared for Surrey County Council.