The Public Law Timing Threat: It’s Time To Rattle The Iceberg
Key Contact: Hugh Hitchcock
Author: Jennifer Butcher & Evangeline O’Dowd
Hindsight is a wonderful thing, but to some, foresight is better. Take for example the Titanic. Had the ship plotted a different course immediately after the first warning signs, the catastrophic consequences that ensued would be little more than a dream. Seemingly, it is imperative that individuals and companies remain cognisant of the everchanging nature of the law and remain astute to the metaphorical icebergs they may be faced with in the public law domain.
Like many things in life, planning is the key to success. Early intervention in public law challenges provides us with an excellent example of why this is so. In recent times, there has been a rise in time barred and stale public law challenges on account of failure to act promptly and seek early and bespoke legal advice from the outset.
Regarding time limits, the Court follows a strict approach. In most cases, an application must be made promptly and in any event within 3 months of the decision under challenge. Sometimes the time to make an application is as little as 6 weeks in planning cases. Furthermore, a party cannot be dilatory or give the perception that you are acquiescing in a decision. Although rare, an application for a judicial review claim can still be dismissed if there is evidence of inaction or an avoidable delay. We often advise people to take robust legal advice urgently whenever a decision that concerns them is made or potentially could be made in the future.
The Benefits of Prompt and Experienced Legal Advice:
There is a clear link between seeking early legal advice and resolving problems sooner. Understandably, clients may be faced with up-front costs in seeking prompt and experienced legal advice from the outset. However, where individuals do not act imminently, the far fetching and ruinous consequences that ordinarily occur in the course of these proceedings begets exposure to far higher costs in the long-term. Below, we have set out some of the key benefits to seeking prompt yet experienced legal advice.
• You can assess all your options
In successful judicial review cases, the previous decision can be quashed, and a new determination made. With that in mind, a plethora of substantively different and complex results can be sought, which without proper legal advice often leaves people making rushed and detrimental decisions given the short time frame. Early legal intervention means that lawyers can explain all the options that are available to you, giving you plenty of time to consider the best decision for you.
• Consider both short term and long term
Often, individuals can be clouded by the short-term initial effects of a decision but fail to give thought to the long-term consequences. Masked by emotions, frequently individuals deal with the initial problem they are faced with and do not consider the insurmountable difficulties a rash decision could give rise to. In terms of public law challenges, public awareness and reputational risk can often be a factor that needs to be considered from the outset.
• Coming from a position of strength not weakness
From a lawyer’s perspective, developing legal strategies and determining tactical considerations takes time. Formulating a factually strong, compelling, and persuasive opposition is no different. By seeking early legal advice, you can drastically increase your chances of success, putting you in a position of strength from the outset. Equally, by retaining early advice, it is easier to streamline the claim and hone in on the strongest points of opposition, which will give you the best opportunity to successfully undermine your opponent’s position.
Two Recent Cases
R (Bailey & others) -v- City and County of Swansea Council
Acuity Law have recently been instructed by a group of Mumbles Road residents in a judicial review claim seeking to challenge plans to develop a skate park at a particular location by the seafront at Llwynderw. Local residents sought legal advice to voice their concerns. Due to the residents seeking early legal intervention and through Acuity’s experienced team, the residents were able to submit the judicial review within the requisite time period, meaning that the High Court will now be required to determine whether the decision by the Council to hand over the site to the Community Council was lawful.
Porthcawl Residents’ challenge of Ministry of Justice plans
Acuity Law also recently acted on behalf of a number of Porthcawl residents against the Ministry of Justice in a public law challenge. The MoJ’s proposed development which was seeking to convert a local hotel into a residential shelter for women convicted of low-level crime was met with great concern from local residents given that no consultation had taken place. In light of this, Acuity Law worked with members of the local community to strongly oppose the development. The opposition was constructed on the basis of the likely damage to the local economy, drain on public services and increased localised crime rates. Following Acuity Law’s intervention, the MoJ has confirmed that it is no longer considering the Porthcawl hotel as a potential location.
The above examples solidify that a prompt approach backed by experienced legal and holistic advice is the key to successful public law challenges. The time taken in constructing an organised and structured opposition is pivotal when faced with public sector entities and evidently a strategy which has a proven track record of success for our clients.
In conclusion, it is imperative that individuals act promptly when making a public law challenge in order to avoid the inevitable icebergs that undeniably come to the surface in the event of a delayed reaction. Planning and predicting these icebergs will most certainly make for a smooth sailing and favourable outcome. Had the Titanic foreseen the iceberg, the drivers would have diverged from the path in plenty of time and the outcome would have been extremely different. Don’t make the same mistake in the legal realm and take robust legal advice urgently whenever a decision that concerns you is made or potentially could be made in the future.
For further details or advice on any topics raised in the article, please contact our litigation team.