Three-month time limit for judicial review proceedings begins from date of decision, judge rules

A judge in the Court of Session ruled that the time limit under section 27A of the Court of Session Act 1988 begins to run on the date on which the decision is made, but held that if the litigant is not made aware of the decision until a later date that can be taken into account by the court when considering whether to exercise its “equitable discretion” to extend the period.

Lord Ericht heard that the petitioner Adeyimi Odubajo was seeking to challenge a decision of the Home Secretary that an application for asylum was not a fresh claim.

The decision was in a letter dated 5 June 2019 and received by the petitioner’s solicitor on 7 June 2019.

‘Time limit’

The petition was presented to the court on 6 September 2019, raising the issue of whether the three-month period began on 7 June, in which the case the petition was in time, or whether the three-month period began on 5 June, in which the petition was outwith the time limit - an issue was had caused “uncertainty” among practitioners and the respondent in previous cases.

Section 27A(1) of the Court of Session Act 1988, as amended by the Courts Reform (Scotland) Act 2014, which followed a recommendation in the Report of Lord Gill’s Scottish Civil Courts Review, provides that an application to the supervisory jurisdiction of the court must be made before the end o the period of three months beginning with the date on which the grounds giving rise to the application first arise, or such longer period as the court considers equitable having regard to all the circumstances.

Counsel for the petitioner submitted that the “date on which the grounds giving rise to the application first arise” is the date on which the petitioner was “notified” of the decision.

Prior to that, he could not bring a challenge to the court, as grounds had not arisen, meaning it would be “impossible” for him to know the grounds or consider framing grounds.

A contrary interpretation would mean that time was running when the petitioner did not know that a negative decision had been taken.

In immigration cases, it could take over a month to notify an appellant of a decision of the Upper Tribunal refusing permission to appeal.

Under reference to section 7 of the Interpretation Act 1978, it was submitted that service of the decision would have been affected at the time the letter would be delivered in ordinary course of post.

Esto the petition was not lodged in time, it was argued that it should be admitted late, as it was arguably only one day late, there was “no prejudice” and the petition had “merit”.

Counsel for the respondent submitted that the date of the commencement of the three-month period was the date of decision.

But in the event that the court was with the respondent, the court was invited to exercise its discretion in favour of extending the time limit, as the period by which the time-limit was exceeded was “minimal” and reflected the two-day period which the decision took to reach the petitioner’s agent, and there was no prejudice to the respondent.

‘Principle of certainty’

The judge ruled that the application was out of time, but having been satisfied that the petition had a “real prospect of success” he considered that it would be “equitable” to extend the time to allow the case to proceed.

In a written opinion, Lord Ericht said: “It is an important principle in respect of good public administration that there should be certainty about the validity of administrative decisions. A time limit contributes to such certainty.

“Public authorities may, after the expiry of the time limit without a judicial review application having been made, proceed on the basis that the decision is a valid one. A third party who has an interest in the subject matter of the decision may also proceed on that basis.

“The starting of the calculation of the time limit from the date of the decision contributes towards that certainty. The starting of the time limit period at some later date upon which a petitioner has become aware of the decision is not conducive to that certainty.

“The public authority and any third party relying on the decision are unlikely to have any knowledge about when the petitioner has become aware of the decision and therefore will be unable to proceed with certainty after the passing of three months.

“Further, using the date of decision will generally allow the proceedings to progress more expeditiously once they are brought: there may be difficulties in proving the date on which the particular petitioner became aware of the decision, whereas the date of the decision will usually be non-contentious and will not require proof.

“There is also an important principle, in respect of the rule of law, that the State must accord to individuals the right to know of a decision before their rights can be adversely affected. This principle also applies in European Union law.

“In my opinion the three-month time limit under section 27A(1)(a) begins to run on the date on which the decision is made, but if the decision is not received until a later date that can be taken into account in considering whether to extend the time under section 27A (1)(b).”

‘No prejudice’

He added: “In coming to this opinion, I have taken into account the background to the introduction of the time limit into Scots law. I have also sought to balance the principle of certainty in good administration and the principle of the rule of law.

“In my opinion both of these principles can be given effect to, and the appropriate balance is achieved, by giving consideration to the knowledge and awareness of the petitioner when dealing with extension of the time limit.

“This is in line with the approach in European Union law cases. In such cases the court is obliged to use its discretion to extend the time limit so as to ensure the claimant has a period to bring proceedings equivalent to that which the claimant would have had if the time limit had run from the date on which the claimant knew, or ought to have known, of the infringement of EU law.

“Applying the foregoing to the current case, I find that the application to the court on 6 September 2019 was not made before the end of the period of three months beginning with the date of the decision on 5 June 2019.

“However, in my opinion it would be equitable in all the circumstances to extend that period to the date on which the decision letter was received that is 6 September 2019. The delay is minimal and reflects the period between the date of the decision and the date of receipt.

“There is no prejudice to the respondents or any third party. As the proceedings were brought within that extended period, I find that this petition has been brought timeously.”