San Vicente and another v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Jackson,Lord Justice Lloyd |
| Judgment Date | 05 July 2013 |
| Neutral Citation | [2013] EWCA Civ 817 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/3388 |
| Date | 05 July 2013 |
[2013] EWCA Civ 817
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Philip Mott QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Jackson
and
Lord Justice Beatson
Case No: C1/2012/3388
Richard Kimblin (instructed by the Treasury Solicitor) for the Appellant
Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law) for the Respondents
Introduction
This is an appeal by the Secretary of State for Communities and Local Government ("the Secretary of State") against the Order dated 12 December 2012 of Mr Philip Mott QC sitting as a Deputy High Court Judge in the Administrative Court. The deputy judge permitted the claimants, Sandra San Vicente and Gerald Carden, to amend the grounds of an in time application pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash the grant of outline planning permission where the application to amend was made after the expiry of the six week period within which section 288(3) requires such applications to be brought. The question before this court concerns the power of the court to permit such an amendment. In particular, does CPR Rule 17.4, which deals with "amendments to statements of case after the end of a relevant limitation period" (emphasis added) apply either directly or by analogy? The substantive hearing was fixed for a final hearing on 1 July. To assist the parties, at the conclusion of the hearing on 18 June, my Lord, Lord Justice Lloyd stated that the appeal would be dismissed. I now give my reasons for this conclusion.
On 12 July 2012, following a hearing, an Inspector appointed by the Secretary of State granted Taylor Wimpey UK Ltd ("Taylor Wimpey"), the third defendant, outline planning permission to construct up to 100 houses on a field on the edge of Great Dunmow in Essex. On 22 August the claimants, then acting in person, issued their application challenging the decision. The six week period required by section 288(3) of the 1990 Act expired on 23 August 2012.
On 19 October, almost two months after these proceedings were issued and the expiry of the six week period, Taylor Wimpey applied for summary judgment. The claimants by then had instructed their present solicitors. It was common ground before the deputy judge (see judgment, [4(iii)]) that, because the grounds in the claimants' original application essentially challenged the merits of the decision, it was doomed to fail. As a result, on 8 November, some two and a half months after the expiry of the six week period, the claimants applied inter alia to amend the claim by substituting new grounds. One of the new grounds was that the decision was vitiated by procedural irregularity.
In the order that is the subject of this appeal, the deputy judge granted the claimants permission to substitute the procedural irregularity ground for the original grounds. Mr Kimblin, on behalf of the Secretary of State, submitted that in so ordering the deputy judge fell into error and acted outside the scope of his discretion. I summarise Mr Kimblin's submissions at [26] – [29] and [33] – [34] below. At this stage it suffices to say that he accepted that the judge had jurisdiction to allow the amendment. He argued that the judge failed to give the proper weight to the six weeks limitation period in section 288(3) of the 1990 Act or to apply or have regard to Rule 17.4, the relevant provision in CPR Part 17.
The 1990 Act and the CPR:
Section 288 of the 1990 Act provides that any person who is aggrieved by any order or by any action on the part of the Secretary of State to which the section applies and wishes to question the validity of the order or action on the grounds that it is not within the powers of the 1990 Act, or that any of the relevant requirements have not been complied with, may apply to the High Court within six weeks from the date on which the order is confirmed or the action is taken.
The relevant Part of the Civil Procedure Rules is Part 17. The material provisions in this appeal are:
"17.1 —
(2) If his statement of case has been served, a party may amend it only —
(a) with the written consent of all the other parties; or
(b) with the permission of the court
17.3 —
(2) The power of the court to give permission under this rule is subject to —
(c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period).
17.4 —
(1) This rule applies where —
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under —
(i) the Limitation Act 1980; or
(ii) the Foreign Limitation Periods Act 1984; or
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."
The limitation in Rule 17.4(2) derives from and is in similar language to section 35(5) of the Limitation Act 1980. The predecessor of Rule 17.4 in the Rules of the Supreme Court was Order 20, rule 5. Order 20, rule 5 also dealt with changes of parties, now dealt with in Part 19. Rule 19.5 is concerned with adding or substituting parties after the end of a relevant limitation period. It was accepted before the deputy judge and before us that the wording of Rule 19.5(1) is, in material respects, identical to the wording of Rule 17.4(1) and that the reasoning in cases on it applies to the position under Rule 17.4. A significant part of the submissions before us related to two such decisions, Parsons v George [2004] EWCA Civ 912, [2004] 1 WLR 3264, and Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ. 1566, [2005] 2 P & C R 5.
These provisions reflect the way the framers of the Rules have struck the balance between the competing interests of claimants and defendants in different circumstances. The way this has been done and the changes over time were explained by Dyson LJ (as he then was) in Parsons v George [2004] EWCA Civ 912, [2004] 1 WLR 3264. His discussion, albeit in the context of the operation of Part 19 in a private law dispute between a landlord and a tenant, and the effect of the Civil Procedure Rules on jurisdictions previously enjoyed by the court, is illuminating.
Factual and procedural background:
The material facts are set out at [1] – [2], [17] – [43] of the judgment below. It is only necessary to summarise them here. Taylor Wimpey's application for outline planning permission was refused by the second defendant, Uttlesford District Council ("the Council") on 24 October 2011. Taylor Wimpey appealed, and the Secretary of State decided the appeal would be determined by an Inspector conducting a hearing rather than a full inquiry.
The hearing opened on 11 April 2012 as scheduled. After some oral evidence on behalf of both parties had been given to the Inspector, it became clear that the reason there were no objections from local residents was because the Council had not given proper notice of the hearing. The Inspector asked the Council (which was the second defendant below but has taken no part in this appeal) to invite the submission of further comments. After a number of comments were submitted, it was decided that there should be a further hearing on 7 June and notice of this was sent to interested parties.
There was email correspondence between Taylor Wimpey and the Planning Inspectorate about the parameters for the new hearing. Taylor Wimpey asked the Inspector about a statement in a letter from the Planning Inspectorate dated 4 May 2012 which was emailed to those involved which stated that the intention was "to enable any interested parties to be able to listen to all the evidence and to be given an opportunity to comment at the Hearing". It asked the Planning Inspectorate to confirm that "the oral evidence presented by both parties at the original hearing remains part of the evidence on which he will take his decision" (all emphasis added).
The Planning Inspectorate response was dated 18 May 20It stated that, while "in principle, it will be necessary to re-run the hearing", "the procedure to be adopted will be dependent upon the nature and extent of public attendance", "the Inspector will discuss the details with all those present at the start of the resumed event", "the main parties should rely on the case provided in their statements, and "the Inspector will not expect new material to be put forward".
When the hearing reopened on 7 June, the agenda was the same as that produced for the first hearing. The claimants and Councillor Ranger, who had been present at the earlier hearing, stated that their impression at the second hearing was that the Inspector had already made up his mind. This was because the Inspector stated the agenda was identical to that at the hearing in April, and that each item had been examined in great detail. It was also because, (a) in the light of this, he invited parties to state their case briefly, (b) the other parties summarised what had occurred at the previous hearing, and (c) much time was spent discussing issues which assumed the grant of permission.
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