Corus UK Ltd v Erewash Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 09 December 2005 |
| Neutral Citation | [2005] EWHC 2821 (Admin) |
| Docket Number | Case No: CO/7480/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 December 2005 |
[2005] EWHC 2821 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr. Justice Mccombe
Case No: CO/7480/2005
Mr Colin Thomann (instructed by Marrons) for the Claimant
Mr Andrew Hogan (instructed by Council Solicitor, Erewash BC) for the Defendant
Mr Justice McCOMBE:
This is an application by the Claimant, Corus UK Limited ("Corus") for an extension of time for service of an application under Section 287 of the Town and Country Planning Act 1990 ("the Act"). By the application under the Act Corus wish to challenge parts of the Erewash Local Plan ("the Plan"), adopted by Notice of Adoption dated 9 August 2005. The Defendant is Erewash Borough Council ("the Council").
By Section 287(4) of the Act it is provided that an application under section 287 must be made within 6 weeks from "the relevant date". There is no dispute as to the relevant date here, namely 9 August 2005. Further, it is not disputed that the 6 week period expired on 20 or 21 September 2005. (In his written argument for Corus Mr. Thomann says that the time ran to 21 September; in oral submissions he said it expired on 20 September. It is not contended that anything turns upon this distinction.) Corus's Claim Form in these proceedings was issued on 20 September. It was served on 23 September.
By CPR rule 50.1(2), it is provided that,
"These Rules [i.e. the CPR] apply in relation to the proceedings to which the Schedules apply subject to the provisions in the Schedules and the relevant practice directions"
The reference to the Schedules is to the Schedules to the CPR. Included in Schedule 1 to the CPR is RSC Order 94 "Applications and Appeals to High Court under various Acts: Queen's Bench Division". RSC Order 94 applies accordingly to an application under Section 287 of the Act. There is no dispute that this is so. By Order 94, Rule 1(2) the application has to be made by claim form which must state the grounds of the application. By Rule 2(1) it is provided that,
"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."
Therefore, the claim form had to be issued and served in this case by no later than 20 or 21 September 2005 (as the case may be). By error of the agents acting for Corus's solicitors, having issued the claim form, they returned the same to their principals rather than serving it upon the Council, as I am told they were instructed to do. Service was in fact effected on 23 September. Accordingly, Corus now makes this application.
The first problem is that there is an issue as to the procedural rules that govern such an application for an extension. Mr. Thomann for Courus says that CPR rule 3.1 applies; Mr. Hogan for the Council says that CPR rules 7.5 and 7.6 apply. If Mr. Hogan is correct, there are only very limited grounds (none of which apply here) on which the Court has jurisdiction to grant relief where (as here) the application for extension is made after the expiry of the relevant time period. If Mr. Thomann is correct, the Court has a more general jurisdiction.
The claim form issued in this case was a claim form of the type envisaged by CPR Part 8. Again, there is no dispute that this was the appropriate type of claim form: see CPR rule 8.1(6), and the Practice Direction paragraphs 1.1, 3.1–3.3, Section B and Table 2 (fourth item) and paragraph B.8. By paragraph 1.1 it is stated that in the practice direction "Schedule rules" means provisions contained in the Schedules to the CPR which were previously contained in the Rules of the Supreme Court. As already seen RSC Order 94 is included in the schedules to the CPR. In Section B, paragraph B.2 (in a series of provisions stating that "Special provisions take precedence") it is provided that,
"B.2 The claimant must first comply with any special provision set out in the Schedule rules, practice direction or Act relating to the claim."
It is then provided that,
"B.5 Subject to any special or contrary provision in an Act or Schedule rule, the claimant must use the procedure set out in the remainder of this section."
We know that in our case the Act and "Schedule provision" does make special or contrary provision concerning the time for issue and service of the claim form. Mr. Thomann points out that, subject to this, a Part 8 claim form (within Section B of the Practice Direction) would have to be served not less than 21 days before the hearing date: paragraph B.10. There is then a passage in brackets at the end of the passage of the practice direction containing paragraphs B.10 and B.11 which provides,
"( CPR, rule 3.1(2)(a) and (b) provide for the court to extend or shorten time for compliance with any rule or practice direction, and to adjourn or bring forward a hearing.)"
He submits that this at least gives an indication that the draftsman of these provisions was steering the parties to CPR rule 3 with regard to extensions of time in this area. Further, the commentaries to Section 287 in the Planning Encyclopaedia and to RSC Order 94 in Civil Procedure 2005 Vol. 1 p. 1963, paragraph sc94.2.2 indicate that the time for service may be extended under CPR Part 3, although the editors of Civil Procedure refer to O. 3 r.5 of the old rules. The cases, there referred to, were decided under the old rules.
The Council, through Mr. Hogan, argues that the jurisdiction to extend time is to be found in CPR rule 7.6. It is necessary to recite first rule 7.5, which provides,
"(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 4 months after the date of issue.
(3) The period for service is 6 months where the claim form is to be served out of the jurisdiction."
Rule 7.6 then provides,
"(1) The claimant may apply for an order extending the period within which the claim form may be served.
(2) The general rule is that an application to extend time for service must be made –
a) within the period for serving the claim form specified in rule 7.5; or
b) where an order has been made under this rule. Within the period specified by that order.
(3) If the claimant applies for an order to extend 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-
the court has been unable to serve the claim form;or
the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and,
in either case, the claimant has acted promptly in making the application…"
(Italics added by me)
In this case, of course, Corus does not apply for an order to extend 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". It applies to extend time for service after the end of the period specified by CPR rule 50.1, Schedule 1 and RSC Order 94 rule 2(1). Thus, on its face, order 7.6 does not apply at all and any power to extend time must be found elsewhere. The "elsewhere", says Mr. Thomann is CPR rule 3.1(2)(a). It is clearly this interpretation of the rules that is favoured by the editors of the works already cited.
Not so, argues Mr. Hogan for the Council. He refers to the earlier practice direction issued in respect of Part 8 matters. Paragraph 2.1 of that direction states,
"Part 7 and the practice direction which supplements it contain a number of rules and directions applicable to all claims, including those to which Part 8 applies. Those rules and directions should be applied where appropriate."
Mr. Hogan submits, therefore, that Part 7 is "applicable" and that it is "appropriate" to apply rule 7.6. He submits that it would be strange if a less strict regime applied to this case, where the statutory time limit is short, than to more usual cases with longer limitation periods of ( say) 3 or 6 years and with a longer service period of 4 months.
This paragraph of the practice direction makes a statement of fact: it says that Part 7 etc. contains "a number of rules and directions applicable to all claims". It is in the form of a reminder to look to Part 7 to see which of its provisions apply to any particular Part 8 claim. The question, therefore, is whether rule 7.6 is one of those provisions which is "applicable to all claims" including this one. In my view, as a matter of construction it is not. It is expressly dealing with applications for an extension of time after the end of the period specified by rule 7.5 or an order of the court. It is clear that this is not such an application. Therefore, rule 7.6 is not a one of those rules or directions which applies to all claims, including those to which Part 8 applies. Therefore, it is not "appropriate" to apply that rule to this case.
(An interesting question arises as to the period for service that applies to matters listed in Section A and Table 1 of Practice Direction B to Part 8 of the CPR, since it appears that the special provisions in paragraphs B2 and following, and in particular paragraph B10, do not apply to the matters listed in the table in Section A. However, that is not a matter for today.)
I am fortified in this construction of the rules and practice directions by certain dicta of Lord Justice Mance (as he then was) in Nagusina Naviera vAllied Maritime Inc [2002] EWCA Civ 1147. In that case, the Court of Appeal was concerned with the rather similar rules concerning service of claim...
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