21 August 2013

In the words of Haddon-Cave J, it may not be “the (legal) Wars of the Roses Part 2” but his judgment of 15 August 2013 granting permission for Judicial Review of the decision to re-inter the remains of Richard III in Leicester certainly sets the scene. However, notwithstanding the tantalising prospect of the tussle between The Plantagenet Alliance on one hand and the Justice Secretary and the University of Leicester on the other, the decision to grant permission causes some confusion when it comes to Judicial Review time limits.

CPR 54.5 states that a Judicial Review claim form must be filed promptly and, in any event not later than three months after the grounds to make the claim first arose. This deceptively simple provision has proven to be a recurring legal battleground in the past and the latest decision of Haddon-Cave J does little to end that.

The relevant facts are that, pursuant to much speculation around the discovery of the burial place of the last Plantagenet king, the Justice Secretary granted the University of Leicester a licence on 3 September 2012 to exhume “persons unknown” from a municipal car park site in Leicester. He attached a condition that, no later than 31 August 2014, the human remains exhumed be “deposited at the Jewry Wall Museum or else be reinterred at St Martins Cathedral or in a burial ground in which interments take place”.

The human remains were subsequently exhumed and, on 12 September 2012, the University of Leicester announced preliminary findings of the exhumation suggesting that the remains of Richard III might have been found and indicating an intention to re-inter the remains at Leicester Cathedral. However, it was only on 4 February 2013 that the university confirmed the identity of Richard III beyond reasonable doubt.  

The Plantagenet Alliance issued a claim for judicial review on 3 May 2013 on the basis of a failure to consult on re-interment by both the Justice Secretary and the University. In the context of the 4 February 2013 decisions, this was an eleventh hour application. In the context of the 3 September 2012 decision to grant the exhumation licence with the relevant conditions attached to it, it was nominally out of time (being a full eight months after the event). On its face, the claim was either out of time or not promptly pursued as required by CPR 54.5.

However, Haddon-Cave J found that there was no unreasonable delay on the part of The Plantagenet Alliance and consequently it could challenge the 4 February 2013 decisions. In addition, the court would also exercise discretion to extend the time for challenging the 3 September licence decision. The reasoning of the judge is recorded very briefly but it appears to be based primarily on the view that, until 4 February 2013, no one could be sure that the remains in question were that of Richard III.

Haddon-Cave J considered the merits of the judicial review to be arguable as there was plainly a failure to consult by the Justice Secretary and the University (who he held to be acting as a public authority in this situation). The propositions put forward (and considered by Haddon-Cave J to have merit) included (amongst other factors) that, “prior to granting a Licence”, there was a legitimate expectation of consultation, the Justice Secretary was well aware of a duty to consult on re-interment, he was actually aware that the remains might be Richard III and therefore sensitive and unprecedented and that he could have placed a condition on the licence requiring consultation if it was Richard III. The Justice Secretary completely failed to do that instead imposing a mandatory condition as to re-interment without provision for consultation. That being the case, it is difficult to see why the Plantagenet Alliance could not and should not have challenged the licence there and then. In CPR 54.5 terms, the grounds of the claim had already arisen, notwithstanding whether or not the remains eventually turned out to be Richard III, as the licence should have catered for that possibility and the Justice Secretary should have already consulted by then anyway.

Whilst many may have sympathy with the cause of The Plantagenet Alliance, the reality is that, ever since the University of Leicester’s own press release and media event of 24 August 2012, the world at large will have known that the exhumation related to the very high profile hunt for Richard III. Since 3 September 2012, it should have been clear that the Justice Secretary had required the re-interment of the remains (even if they did belong to Richard III) without consultation. Since 12 September 2012, it will have been known that, should they be the remains of Richard III, Leicester Cathedral would be making arrangements for re-interment. In those circumstances, it does seem to be stretching the boundaries of CPR 54.5 for The Plantagenet Alliance to have waited 8 months to, in effect, challenge the conditions of re-interment recorded in an exhumation licence on 3 September 2012 and a public expression of intention from 12 September 2012 to comply with those conditions through re-interment at Leicester Cathedral.

The extraordinary leeway given to The Plantagenet Alliance (and a protective costs order in their favour to boot) contrasts starkly with the significantly stricter treatment of Mrs Nash, a disabled pensioner, challenging the decision to outsource key local authority functions of the borough council in Barnet (coincidentally the site of a key battle in the Wars of the Roses). Despite challenging, on 10 January 2013, the decision to award one contract on 6 December 2012 and, pre-emptively, another contract on 31 January 2013, Mrs Nash was held to be out of time. The judgment of Underhill LJ of 29 April 2013 held that Mrs Nash should have challenged the original 2010/11 council decisions to approve procurement for the relevant services. Despite considering that there was merit in the argument that Barnet had failed to consult, the real current significance of the issues and potential personal detriment to Mrs Nash and other residents, the judge also refused to grant an extension of time to Mrs Nash.

Underhill LJ stated that: 'I would regard the claim based on failure to consult as out of time. In my view, it is clear that if [the Defendant] was under the duty relied on by the Claimant it should have consulted prior to the decisions taken in 2010/2011 to proceed with outsourcing and to initiate procurement procedures accordingly; and if it was a breach of that duty that breach crystallised when those decisions were taken without any consultation having occurred. It seems to me, on an ordinary reading of the words in CPR 54.5, that that was when 'the grounds to make the claim first arose''.  The fact that it might have been a continuing breach was irrelevant. The key requirement for CPR 54.5 is when the claim first arose. The Court of Appeal has since upheld this analysis.

In the circumstances, it is difficult to square the position of Haddon-Cave J with that of Underhil LJ. Save perhaps to observe that legal certainty as it applies to current local authority policy and procurement is of rather greater priority than that as regards the fate of a king who has already waited over 500 years for a final resting place.

Brian Wong is a litigator specialising in Judicial Review.

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