Let’s face it, we’re all guilty of putting things off. A “limitation period” is a legal mechanism which aims to prevent this, providing a deadline for claimants to bring legal challenges.
In this post, we look at the time limits for bringing judicial review claims, what needs to happen before the deadline, and what individuals can do if the deadline has expired.
As ever, limitation periods in judicial review claims can be complex, so this post is not intended to provide legal advice, and should not be taken as such. If you would like an experienced solicitor to review your case then get in touch.
For more information about judicial review in general, see our resource collection.
What is a limitation period?
Limitation periods exist for all causes of action but the length of time a person has to start proceedings after the act or omission they wish to challenge depends on the facts of the case and the type(s) of law involved.
By way of example, if you suffer a personal injury, the limitation period is normally 3 years, whereas a claimant may have 6 years to bring a claim for breach of contract.
Given these rather lengthy time periods, it may be a surprise to discover that for most judicial review proceedings, the primary test for filing the claim is that it must be done promptly.
If this seems a bit vague, the rules for judicial review proceedings offer further guidance, confirming that the claim must be filed “promptly … and in any event not later than 3 months after the grounds to make the claim first arose”.
The only exception to this in the judicial review context is the limitation period for Cart-type claims (where a claimant seeks to challenge a decision of the Upper Tribunal to refuse permission to appeal a decision by the First Tier Tribunal), which is only 16 days.
What are the relevant dates for calculating the limitation period?
So if proceedings have to be issued promptly, and not later than 3 months after the grounds to make the claim first arose, when exactly does the limitation clock start to click?
For example, in the case of immigration decisions where judicial review is the only route of challenge, is it the date of the Home Office decision letter that triggers the limitation period? Is it the date the applicant receives that letter? Or is it something else?
The truth is that the exact date will likely turn on the individual facts of the case but, in most cases, it is likely to be the date when the grounds of the challenge first arose (i.e. the date of the decision letter), and not when a person found out about it.
Is there any scope to extend the limitation period?
If it took 4 months for an individual to receive a Home Office decision (believe it or not, this does happen), then it would seem unreasonable to expect them to start proceedings before they even knew about the decision.
The real question here is whether there is any scope to extend the limitation period.
The rules for judicial review proceedings expressly prohibit the limitation period being extended by agreement between the parties. Ultimately, this means that only the court has the power to extend (or shorten) the time limit for bringing a claim.
When might the court exercise its power to extend the deadline?
Going back to our applicant whose decision letter took 4 months to be received.
Let’s imagine their further submissions were not accepted by the Home Office as satisfying the legal test for a fresh claim. The date of the decision letter was 14 October 2020 and our unfortunate applicant was not granted a right of appeal.
Arguably, the October date is when limitation clock started proverbially ticking. On 14 February 2021, Royal Mail finally delivered the letter (Happy Valentine’s Day!)
By the time the decision letter is received by the affected individual, their application for judicial review is already out of time.
Need to act “promptly”
In these circumstances, provided the individual kept the envelope with the Royal Mail tracking stickers, and could evidence that it had taken 4 months for their decision letter to be received, the court may be willing to grant permission provided the claim is made promptly thereafter.
For those thinking this example seems far-fetched, it reflects the strict approach taken by the court for claims filed out of time. Not knowing that your immigration application had been refused (as in our above example) is likely to be one of the few reasons that the court would accept.
Extensions to the limitation period can’t be sought from the court in advance. An extension application is made at the same time as the out of time claim is filed. You will need to explain the reasons and submit any evidence in support, along with the relevant facts and the legal arguments in the case.
The court will consider the extension application at the same time as considering whether to grant permission. Permission is only granted if, based on the written legal arguments, the court considers the case is arguable. In the last few years, only around 20% of JR applications that were considered by the court were granted permission.
Clearly issuing proceeding late simply reduces these odds further.
It is also important to note that, even if a claim is filed within 3 months of a decision, it may not necessarily have been done ‘promptly’. Although rare, an application to pursue a judicial review claim can still be dismissed if there is evidence of inaction or avoidable delay.
What exactly needs to be done within the limitation period?
In most cases, legal proceedings are started by filing a claim form at the appropriate court, paying the issuing fee (currently £154 to file the claim form plus any additional fees for additional applications), after which the court seals and issues the proceedings.
Before this stage, there is also a lot of legal work, or pre-action steps, that need to be completed before your claim can be issued at court.
One of the most important steps is writing a detailed letter, succinctly setting out the facts of the case, the basis of the claim and what it is that you actually want. For a more detailed look at this process, see The Perfect Pap: How to write a letter before claim.
A well-written letter (sometimes called a letter before claim, or a pre-action protocol letter) weaving the claimant’s case through the relevant law and guidance, may result in the other side settling the case without matters proceeding to court, and thereby saving considerable expense.
The letter before claim must give the defendant a reasonable period of time to reply and, in the context of immigration decisions, this will normally be at least 2 weeks.
It is not uncommon for extensions to this deadline to be requested and, unless wholly unreasonable, it will usually be appropriate to agree to short extensions.
This will demonstrate to the court that every effort has been made to settle the case without issuing proceedings prematurely.
Extensions beyond the limitation period?
Requests made by a defendant to extend the period for a reply beyond the expiration of the limitation period need to be considered very seriously by you and your lawyer (if you have one).
Starting litigation should always be a last resort so refusing a reasonable extension request is likely to adversely impact the judge’s decision at the permission stage. However, we have already seen the high bar a claimant will need to reach for permission to be granted out of time.
There is no silver bullet in circumstances like these but the following considerations may offer guidance:
- Is the extension request genuine – are the facts of the case complex or is there a lot of evidence to review which might justify the need for more time;
- What is the likelihood of the defendant conceding without the need for litigation? If the facts in the case are strong, it is possible that the case won’t proceed to court;
- Is there evidence to demonstrate that you have otherwise acted promptly?
The rules for judicial review proceedings are very clear that the pre-action steps cannot be abridged simply because a claimant is running out of time and the limitation period cannot be extended to ensure that the pre-action steps are properly complied with.
However, in genuinely urgent cases (where removal on a flight is within days, for example), then the pre-action steps may not be necessary.
What does this mean for claimants?
In practical terms, this timeline doesn’t offer claimants much time to save up to bear the financial costs of making the application(s) to court, let alone time to find a lawyer to advise them about the merits of their case, or to complete the pre action steps.
It is also worth highlighting that, for those claimants where judicial review is the only remedy following refusal of their immigration application, if their leave to remain in the UK expires whilst proceedings are ongoing then this is likely to have significant consequences for their rights and entitlements whilst living in the UK.
Is there anything that can be done if the limitation period has lapsed?
If you are, even in part, responsible for the delay then the short answer is likely to be no.
Even if the claimant themselves is not responsible for the delay but it can be attributed to their lawyer or funding decisions, the answer is still likely to be no.
In some circumstances, there may be fresh evidence that can be obtained to request reconsideration of the decision made by the public body. However, this will be fact-specific.
Of course, as lawyers, we are always likely to suggest seeking legal advice in respect of a potential judicial review challenge to a Home Office decision.
But the reality is that any delay in taking the required steps within the required timeframes, no matter how strong your challenge, may undermine your chance of success.