Corus UK Ltd v Erewash Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE WARD,LORD JUSTICE LONGMORE |
| Judgment Date | 22 June 2006 |
| Neutral Citation | [2006] EWCA Civ 1175 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 2006 |
| Docket Number | C1/2005/2911 |
[2006] EWCA Civ 1175
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
(MR JUSTICE McCOMBE)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Ward
Lord Justice Laws
Lord Justice Longmore
C1/2005/2911
MR A HOGAN (instructed by Erewash Borough Council, Town Hall, Wharncliffe Road, Ilkeston, DERBYSHIRE, DE7 5EP) appeared on behalf of the Appellant.
MR C THOMANN (instructed by Messrs Marrons, 1 Meridian South, Meridian Business Park, LEICESTER, LE19 1WY) appeared on behalf of the Respondent.
This is an adjourned application for permission to appeal against the decision of McCombe J given in the Administrative Court on 9 December 2005 when he granted an application by the proposed respondent in this appeal for an extension of time within which to serve an application under section 287 of the Town & Country Planning Act 1990. Given the issues which arise, it is unnecessary to say anything about the underlying facts behind the section 287 application, save that by it the respondent sought an order to quash various parts of the Erewash replacement local plan, adopted on 9 August 2005. The first deposit draft had been published in March 2001, as Mr Hogan reminded us this morning. Modifications had been published in March 2005. The application was sought to be brought against the Erewash Borough Council, who are the applicants in this court. I shall refer to them as the council and to the respondents, who were of course the applicants below, as Corus.
Auld LJ refused permission to appeal on consideration of the papers on 14 February 2006. On 24 March 2006, after a hearing, Mummery LJ adjourned the renewed application for permission to be restored on notice with appeal to follow if permission granted. Section 287(4) provides that an application under that section must be made within six weeks from "the relevant date". Here the relevant date was 9 August 2005 when as I have said the local plan was adopted. I should therefore have thought that the 6-week period expired at midnight on 20 September 2005. In the court below there was some slippage between 20 September and 21 September 2005 as candidates for expiry of the period but nothing turns on that. Corus' claim form was issued on 20 September 2005, so on any view within time, but it was not served until 23 September 2005. By force of CPR part 50 paragraph 1(2) , Rules of the Supreme Court Order 94 applies to any application brought under section 287 of the 1990 Act. Order 94 rule 1.2 provides that the application has to be made by a claim form which must state the grounds of the application. Order 94 rule 2.1 provides:
"A claim form under rule 1 must be filed at the Crown Office and served within the time limited by the relevant enactment for making the application."
The time limit here is of course the 6-week period. Thus, the claim form had to be issued and served by 20 or possibly 21 September 2005. It was issued in time, as I have said, but served two or three days late. It seems, as the judge below records at paragraph 18 of the judgment, that Corus' solicitors had instructed well respected London agents whom they had used before in similar matters. By mistake the London agents, having issued the claim form, returned it to their principals rather than serving it on the council, as apparently they had been instructed to do. I should add that the council conceded below that Corus had an arguable case for the substantive relief they sought by the section 287 application. Mr Hogan for the Council says that the concession means no more than that it was accepted that the claim could not be struck out. But that does not seem to me to shift the nature of the concession.
It is important to have in mind that the 6-week period stipulated in section 287(4) as the time within which the application must be made cannot be extended. The reason is that the court's jurisdiction is derived from the statute, and on the statute's proper construction this jurisdiction is confined to cases where the application is made within 6 weeks. There is longstanding authority: Smith v East Elloe Rural District Council [1956] App Cases 736 and R v Secretary of State for the Environment ex parte Ostler [1977] QB 122. However, the making of the application is constituted by the issue of the claim form, not its service, and the court may extend the time for service; see the note at SC Order 94.2.2, page 2071 of volume one of the 2006 White Book.
McCombe J held in paragraph 13 that the procedure rule which governed the exercise of the discretion to extend time for service was CPR Part 3.12(a) which provides:
"Except where these rules provide otherwise the court may:
"(a) extend or shorten the time for compliance with any rule, practice direction or court order, even if an application for extension is made after the time for compliance has expired."
Applying that rule, McCombe J observed that the discretion which it contemplated was "quite general". He proceeded to review the factors which he considered relevant to the question how he should exercise his discretion and concluded that he should grant the extension sought. The council's principal argument is that Part 3.12(a) has no application in the case, which it is said is governed rather by the much more stringent requirements of Part 7.6. Part 7 is headed "How to Start Proceedings – the Claim Form". It is convenient to read 7.5 and 7.6:
"7.5(1) After a claim form has been issued it must be served on the defendant.
"(2) The general rule is that a claim form must be served within four months after the date of issue.
"(3) The period for service is six months where the claim form is to be served out of the jurisdiction.[…]
"7.6(1) The claimant may apply for an order extending the period within which the claim form may be served.
"(2) The general rule if it is an application to extend the time for service must be made:
(a) Within the period for serving the claim for 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 service of the claim form 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 been unable to serve the claim form; or
(b) The claimant has taken all reasonable steps to serve the claim for but has been unable to do so; and
(c) In either case the claimant has acted promptly in making the application."
I need not read 7.6(4).
If 7.6 applied, Corus' application was plainly out with its terms, since none of the conditions specified at 7.6(3) (a) to (c) is fulfilled and 7.6(2) does not apply. In order to decide whether Part 3.12(a) or Part 7.6 is applicable to the case, it is necessary to consider Part 8, and in particular the Part 8 practice direction and the Part 8 practice direction (b) , to which I will refer as PD8 and PD8(b) , respectively. Part 8.16(a) of the CPR Rules themselves provides:
"A rule or practice direction may in relation to a specified type of proceedings:
(a) Require or permit the use of the part 8 procedure."
I should say that the Part 8 procedure is, very broadly, fit for cases which are unlikely to involve any substantial dispute of fact. It is akin to the process by way of originating summons or motions under the old regime in the Rules in the Supreme Court. The claim form in this case was a Part 8 claim form; so it had to be. Section (b) of PD8(b) applied to the case because paragraph (b) (1) of PD8(b) applied section (b) if the claim is listed in table 2, and applications under RSC Order 94 Rule 1.2 are listed in table 2. Accordingly, paragraph (b) (2) of PD8(b) section (b) applies. That provides:
"The claimant must first comply with any special provision set out in the schedule rules, practice direction or any act relating to the claim."
The schedule rules include RSC Order 94 rule 1.2. So this confirms the application of order 94 to a section 287 application under the CPR, and thus confirms the requirement to issue and serve within the 6-week period. PD8(b) paragraph (b) (5) then provides:
"Subject to any special or contrary provision...
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