Sharma & Ors, R (On the Application Of) v Upper Tribunal

1. MR JUSTICE COLLINS: The applications in these three cases relate to the change of the Rules, by the provisions of Rule 54.7A of the CPR, which came into force on 1 October 2012 providing that judicial review claims issued after 1 October 2012 against the Upper Tier Tribunal claiming that there was an error of law in refusing to grant leave to appeal must be made within 16 days of the decision of the Tribunal. That of course is a very substantial decrease of the time normally allowed for judicial review which is promptly, and in any event, no more than 3 months.

2. There is an additional provision in the new rule that abolishes the right of oral renewal if the claim in question has a refusal of permission on the papers. The purpose behind this is an obvious one: to avoid the misuse of the procedure claim for judicial review simply to enable further time to be obtained. It is rare for a claim against the Tribunal to be allowed to proceed because, as the Supreme Court decided in Cart , the test is the same as that which is applicable to a second appeal. However, there are some cases in which permission has been given to pursue the claim.

3. So far as the three cases in question are concerned, they were all lodged after the 16 days and the court required that there be an explanation given for the delay. However, each of these cases has been allowed to proceed and I have already indicated to Mr Malik that I propose to deal with them on the basis of their merits rather on any question of delay.

4. This was a procedural change and procedural changes come into force when they are made. That is subject to the court ensuring that there is no injustice and it is obvious that there would be injustice, if those who had had a decision but had not issued any challenge before the new rule came into force, found themselves unable to make any claim. Thus what the court has done is to indicate that there would be a 16 day grace, as it were, so that any claim which was made within that period, albeit the decision of the Tribunal had been earlier, would be considered in the normal way. If, however, a claim was lodged after the 16-day period, then an explanation would need to be given as to why there was the delay.

5. The court would of course take into account and consider whether there had been publicity and the extent of that publicity forecasting this particular change. But it must be clear now that all those who practise in this field ought to be aware of the change. Having regard to the fact that we are now at the end of November and this only affects cases decided before the beginning of October, there is very little room left for any real effect of this change. I should say that this arises because no transitional provisions were provided for in the Rule.

6. So far as the abolition of the right of oral renewal is concerned, that will affect all claims lodged after 1 October. It will not affect those which were lodged before 1 October and which have had refusals on the papers because, it could be said, that in those cases it would be unjust to refuse an oral renewal since it may be arguable there that there was an accrued right to that extra protection. That, I imagine, will affect very few cases indeed. That is I think all that I need say on this issue. Thank you, Mr Malik.

7. MR MALIK: Thank you my Lord.