TIME LIMIT CLAUSES AND JUDICIAL REVIEW—THE RELEVANCE OF CONTEXT

Date01 July 1978
Published date01 July 1978
DOIhttp://doi.org/10.1111/j.1468-2230.1978.tb00807.x
TIME LIMIT CLAUSES AND JUDICIAL REVIEW-
THE
RELEVANCE
OF
CONTEXT
IN
a recent article in this
Review,'
it was argued that the decision
of the House
of
Lords in
Smith
v.
East Elloe R.D.C.=
has survived
the later decision
of
the same court in
Anisminic
v.
Foreign Com-
pensation Cammission.s
The conclusion was that, after
Anisminic,"
a statutory provision which purports to exclude completely judicial
review
of
administrative action is ineffective to exclude review
of
ultra vires
action, but that the
Anisminic
principle has
no
application to time limit clauses; that where a provision seeks
merely to limit the period of time during which administrative
action may
be
challenged,
Smith
v.
East Elloe
remains authority
for the proposition that such clauses must be construed con-
sistently with the
"
plain meaning
"
of the
"
plain words
"
of the
provision,
so
that
ultra vires
action cannot be challenged otherwise
than in accordance with the substantive and procedural limitations
of the statutory machinery. In its conclusion that article thus antici-
pated the decision of the Court
of
Appeal in
R.
v.
Secretary
of
State for the Environment,
ex
parte Ostler.'
There seems in fact to be
no
compelling reason why the decision
in
Smith
v.
East Elloe
should have been affected
by
the
Anisminic
case. The respective subject-matter of the two cases was com-
pletely different-a compulsory purchase order and a determina-
tion of the Foreign Compensation Commission. Yet the inter-
relation of the two decisions has continued to provoke extensive
academic debate (in the
form
of
successive attempts to reconcile
the decisions on
a
conceptual basis) because each involved
a
statutory provision which sought to exclude or restrict judicial
review of administrative action.8 It is the thesis of this article
that the disparity
of
the subject-matter renders the protracted
~
1
Alder, "Time Limit Clauses and Judicial Review-Smith
v.
East ElJoe
2
[1956]
A.C.
736.
3
[1969] 2
A.C.
147.
The facts
of
these cases are too well known to warrant
rtpetition.
4 The courts have long been hostile to attempts to exclude their jurisdiction to
review administrative action; in Anisminic, however, the
House
of
Lords delivered
probably its most comprehensive refutation
of
purported exclusion clauses.
5
[1956]
A.C.
736,
751
per Viscount Simonds, although there was conflicting
opinion as to what constituted the
"
plain meaning."
6
See Gordondale Znvestments Ltd.
V.
Secretary
of
State for the Environment
(1972) 23
P.
&
C.R.
334.
For
an excellent discussion
of
the scope
of
the standard
statutory remedy, and a comparison with the ordinary judicial review procedure,
see Alder
(1975) 38
M.L.R.
274,279-284.
8
e.g.
Wade,
"
Constitutional and Administrative Aspects
of
the Anisminic Case
))
(1969)
85
L.Q.R.
198;
Davies,
"
Preclusive Clauses and the Anisminic Case
''
(1971)
35
ConV.(N.S.)
31R
Young,
"
Challenge
of
Compulsory Purchase Orders
"
C19731
J.P.L.
221
;
Trice,
''
The Problem of Time Limits for Judicial Challenge in Planning
Law
"
[1973]
J.P.L.
227.
383
Revisited
"
(1375) 38
M.L.R.
274.
[1977]
Q.B.
122.
384
'lXE
MODERN
LAW
REVIEW
[Vol.
41
debate and attempts at conceptual reconciliation meaningless since,
in terms of the redress of grievances, considerations relevant to
awards of compensation for the expropriation of property over-
seas have
no
relevance to planning
decision^.^
The implication
is that the conflict between the operation of the
Anisminic
principle
on
the one hand and the effective restriction of
a
time limit clause
on
the other hand cannot be resolved
in
the abstract, divorced
from the factual context of the dispute; and that the conclusion
noted above must, therefore, be regarded as valid only in the
form of the more limited proposition that, were the fact situation
of
Smith
v.
East Elloe
to recur, the interpretation of the time
limit clause would not be affected by the intervening decision in
Anisminic;
and it may be supposed that the same would be true
in most planning contexts.
This article seeks, therefore, first, to expose the fallacy that
there is any clear
conceptual
basis
on
which the two cases can be
distinguished, and, secondly, to examine the policy considerations
which, it is submitted, provide the true rationale and justification
for the restriction of judicial review in the particular context of
planning law. That the same considerations are not equally relevant
in the factual context of the
Anisminic
case will, it is hoped, appear
to be self-evident.
It is not suggested, however, that the principal thesis is con-
fined to the present context-on the contrary, it is arguable that
it is a fundamental issue underlying much of modern administra-
tive law-nor that a solution in the field of planning law could
provide a comprehensive formula in all administrative law con-
texts. Ultimately every challenge to administrative action can
be seen to represent a conflict between,
on
the one hand, the
constitutional priorities of fairness and the rule of law, and,
on
the other hand, the administrators' priorities of expediency and
finality. Since, however, there is in reality
no
typical administra-
tive process nor typical administrator, it follows that the resolution
of these conflicting priorities will tend to vary with the particular
process in question; different considerations will apply in different
contexts and the relevance of the same considerations will vary
according to the circumstances.
In
other words, there can be
no such thing as a general solution: rather there must be a
series of particular solutions. Bearing in mind this much wider
application of the thesis, it is the purpose of this article to con-
fine the inquiry to the particular context in question and to the
particular policy factors operating within that context. For,
although the relevant considerations will differ according to the
factual context of any dispute, it
is
submitted that the
methodology
-~
9
Cf.
Wade,
op.
cit.
at pp. 207-208
:
"
In the
Anisminic
case their Lordships
have now repudiated the
East Elloe
case.
.
. .
Thus
the way now lies open for
challenging all sorts
of
planning, housing, compulsory purchase and other orders
after the prescribed six weeks,
on
any
of
the many grounds which go to jurisdic-
tion." But see
now
Wade,
Adminishafive
Law
(4th ed., 1978), pp. 580-582.

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