Hardy v Pembrokeshire CC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Sir Peter Gibson,Lord Justice Chadwick |
| Judgment Date | 19 July 2006 |
| Neutral Citation | [2006] EWCA Civ 240,[2006] EWCA Civ 1008 |
| Docket Number | Case No: C1/2005/1659 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 July 2006 |
[2006] EWCA Civ 1008
Lord Justice Chadwick
Lord Justice Keene and
Sir Peter Gibson
Case No: C1/2005/1659
CO/1401/2005
Mr D Wolfe (instructed by Richard Buxton, Cambridge CB1 1JP) for the Appellant
Mr N Cooke QC (instructed by Pembrokeshire County Council) for the Respondent (1)
Mr T Straker QC, Mr S Tromans & Ms C Patry (instructed by Eversheds, Cardiff CF10 5BT) for the Respondent (2) , Interested Party (1) , (2) & (4)
Mr J Hyam (instructed by Treasury Solicitor) for Interested party (3)
INTRODUCTION:
On 17 March 2006 this court as presently constituted handed down reserved judgments, by which it refused permission to appeal from a decision of Sullivan J dated 26 July 2005. The decision of this court was unanimous. There is now before us an application on behalf of the unsuccessful applicants for permission to apply under CPR Rule 52.17 to reopen the determination of 17 March 2006. By order dated 8 May 2006, Chadwick LJ adjourned this application for an oral hearing on notice to all the respondents, limiting the hearing to the question of whether the appeal should be reopened in the light of information provided by the Treasury Solicitor, as solicitor to the Health and Safety Executive ("HSE") , in a letter to the Civil Appeals Office dated 27 April 2006. It was clearly implicit in that order that permission would not be granted in respect of other issues canvassed in the application to re-open – see CPR 52.17(6) . On 13 June 2006 Chadwick LJ declined to widen the scope of this hearing.
THE LEGAL PRINCIPLES:
CPR 52.17 (1) provides as follows:
"The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy."
There is no doubt that those requirements set out in sub-paragraphs (a) to (c) are cumulative, that is to say, they all have to be met. The procedure under this provision is intended to be used only in rare cases, as was made clear in Taylor v. Lawrence [2002] EWCA Civ 90, [2003] QB 528, the decision of this court which was subsequently reflected in CPR 52.17. It was there decided that this court possesses a residual jurisdiction as a court of justice to re-open a determination in order "to avoid real injustice in exceptional circumstances": paragraph 54. That reference to "exceptional circumstances" is reflected in paragraph (b) of CPR 52.17(1) , and it is a requirement which has been emphasised subsequently in a number of decisions: see Matlaszek v. Bloom Camillion [2003] EWCA Civ 154.
The type of cases which has so far been identified as potentially capable of giving rise to a need to exercise this residual jurisdiction tends to have been that in which the process of justice leading to the determination under challenge has itself been vitiated by bias or fraud, though the jurisdiction cannot be specifically confined to that. Thus in Couwenbergh v. Valkora [2004] EWCA Civ 676 an application for permission was granted where there was a real prospect of successfully showing that an earlier decision had been obtained by fraud and by perverting the course of justice. I say that the jurisdiction cannot be entirely confined to cases where the process of justice has been corrupted: that reflects the fact that this is a residual jurisdiction to correct a real injustice in exceptional circumstances and the categories of such circumstances cannot be predicted in advance for all time. That was noted in this court's decision in Re Uddin [A child] EWCA Civ 52; [2005] 1 WLR 2398.
However, in that same case the court in its judgment gave helpful guidance as to the approach to be adopted towards the exercise of this jurisdiction. At paragraph 18 of its judgment it said this:
"But the Taylor v Lawrence jurisdiction can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. We think this language appropriate because the jurisdiction is by no means solely concerned with the case where the earlier process has or may have produced a wrong result (which must be the whole scope of a fresh evidence case) , but rather, at least primarily, with special circumstances where the process itself has been corrupted. The instances variously discussed in Taylor v Lawrence or in other learning there cited are instructive. Fraud (where relied on to reopen a concluded appeal rather than found a fresh cause of action – Wood v Gahlings) ; bias; the eccentric case where the judge had read the wrong papers; the vice in all these cases is not, or not necessarily, that the decision was factually incorrect but that it was arrived at by a corrupted process. Such instances are so far from the norm that they will inevitably be exceptional. And it is the corruption of justice that as a matter of policy is most likely to validate an exceptional recourse; a recourse which relegates the high importance of finality in litigation to second place." (original emphasis)
The court subsequently repeated, at paragraph 22, its formulation of the test as being one of demonstrating
"that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined."
As has been repeatedly emphasised in the authorities, the hurdle to be surmounted by an applicant seeking to invoke this jurisdiction has to be a very high one, since it is a jurisdiction which if exercised undermines the important principle that there has to be finality in litigation. Moreover, as was made clear in Taylor v. Lawrence at paragraph 55, the effect on others of re-opening the appeal is an important consideration on any such application.
With those principles in mind, I turn to the facts of the present case.
THE PRESENT CASE:
The decision of Sullivan J dated 26 July 2005 was one in which he refused permission to the present applicants to apply for judicial review of the grant of planning permissions and hazardous substances consents for two very large Liquefied Natural Gas (LNG) terminals at Milford Haven in Pembrokeshire. He did so on the basis that the challenge had not been brought promptly, that there had been undue delay, that even the granting of permission to seek judicial review would cause very substantial prejudice to the two developers and would be very detrimental to good administration, and that there was no public interest which outweighed those considerations so as to justify the grant of permission.
In dealing with the application for permission to appeal against that decision, this court agreed with Sullivan J that the challenge had not been made promptly and that there had been undue delay. It follows that the time limits set out in CPR 54.5(1) , dealing with judicial review proceedings, had not been met. Likewise this court upheld the judge's finding that the grant of permission to seek judicial review would cause prejudice to third parties, namely the developers of the two sites.
In this situation it was incumbent on the applicants to show that there was a good reason to extend the time for such a challenge to be brought. The reason advanced before Sullivan J was that there had been an inadequate consideration of issues of public safety by the local authority decision-makers, the respondents to the appeal. In my own judgment on the appeal, with which the other members of this court agreed, I stressed at paragraph 26 that a judge hearing an application for permission to apply for judicial review cannot be expected to conduct what would amount to a substantive hearing of the merits and that Sullivan J had clearly applied his mind to the public safety issues to the extent appropriate at such a stage in the proceedings. Amongst other things he had referred in his judgment to the evidence from the Milford Haven Port Authority, the statutory body responsible for controlling the use of the Haven and for ensuring the safety of operations and navigation within the Haven.
It is necessary to set out part of my judgment which then followed, because that sets the context for the present application. After referring at paragraph 27 to the evidence from the Port Authority giving details of how it had assessed the marine traffic implications of the proposals, I said this:
"27. … That is of particular relevance, because the thrust of the applicants' case was and is that there has been an inadequate assessment of the marine risks associated with the terminal proposals. The Milford Haven Port Authority is a statutory body required to ensure the safety of waters within its jurisdiction. The evidence before Sullivan J made it clear that the Port Authority was satisfied as to the safety of the terminal proposals, so far as its own sphere of responsibility was concerned, while the Health and Safety Executive had advised that it was content so far as the land-based activities were concerned. Both these bodies had so advised the...
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