TIME LIMIT CLAUSES AND CONCEPTUALISM—A REPLY
| Date | 01 November 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01614.x |
| Published date | 01 November 1980 |
TIME LIMIT CLAUSES
AND
CONCEPTUALISM
-A
REPLY
IN
two recent articles in this journal Mr.
N.
Gravells discussed the
question whether the well known
six
weeks time limit clause found in
compulsory purchase and planning statutes is effective to exclude
judicial review
of
governmental decisions after the statutory time limit
has expired.' He analysed the most recent authority,
Ex
p.
Ostler,2
discussed Lord Denning's latest extra-judicial pronouncement and
considered the problems arising out of the relationship between
Smith
V.
East Elloe R.D.CC
and
Anismim'c
v.
Foreign Compensation Com-
mission'
upon which much of the argument has turned. His starting
point was an earlier article
of
mine also in this journal and as our
views differ,
I
should like a chance to reply.
All
the cases dealing with the six weeks time limit clause with the
exception of
Ostler
have held that
it
totally excludes judicial review
after six weeks.'
Anisminic
v.
Foreign Compensation
cast doubt upon
this
because, although the case did not concern the six weeks clause,
the House
of
Lords criticised
Smith
v.
East Elloe R.D.C.,
which it will
be recalled was the leading authority on the clause. In
Ex
p.
Ostler
which concerned a compulsory purchase order procured by fraud
and in breach
of
natural justice the Court of Appeal also held that
review was excluded after six weeks. Since fraud is the most serious
of
defects and
"
unravels everything
"
*
Ostler,
like
Smith,
could be
regarded as the most rigorous possible test of the clause. Unfortunately
their Lordships did not limit their reasoning to questions concerning
the construction of the clause but applied general principles of ad-
ministrative law with which they attempted to distinguish
A
nisminic.
This task, as Mr. Gravells points out was strictly unnecessary given
the different statutory contexts of the two cases. Although Lord
Denning has recanted extra-judicially from some of what he said
in
Ostler
the terms
of
his recantation are by no means clear
lo
and in any
event both Goff and Shaw L.JJ. approached the case
in
the same way.
1
(1978) 41 M.L.R. 383; (1980) 43 M.L.R. 173.
2
[I9771
Q.B.
122.
3
The
Discipline
of
Law
(1979),
pp.
108-109.
See also
Ibid.
pp.
77-78.
4
[I9561
A.C.
736.
6
[I9691
2
A.C.
147.
7
Sce
cases
cited
[I9751 38 M.L.R. 275
at notcs
1
and
98.
The
Jeary
case
119751 38 M.L.R.
275.
See also
[1976] J.P.L. 270.
(ihid.
note
1)
contains some ambivalent dicta but this concerned a different sort
of
clause which did not purport to exclude judicial review.
8
See
Lazarus
Estates
v.
Beady
[1956]
1
All
E.R.
341.
C.
F.
Harris
V.
South-
ampron
Corporation
(1853)
4
D.G.M.
&
G. 137
where
a
decision procured by
fraud in collateral proceedings was set aside after
50
years.
0
(1978) 41 M.L.R. 383.
10
LOC.
cit.
note
3,
above.
For
example he stated that he regarded brcach of
natural justice as producing nullity, but did he still believe that this was relevant
to the actual decision? He also emphasised the part of his judgment invoking the
policy underlying the lime limit clause as the preferred basis
of
his decision. This
670
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