In a recent case an applicant who wanted to make an application for judicial review asked the Court to allow him more time and to extend the 3 month limitation period as she was trying to use ADR. This is a hot topic at the moment as the Courts encourage people to use ADR first before starting proceedings.
The case was Harutunian v Parliamentary and Health Service Ombudsman [2023] EWHC 2281 (Admin) (14 September 2023)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2023/2281.html
Cite as: [2023] EWHC 2281 (Admin)
The Claimant (Ms. Harutunian) made an application for permission to challenge the procedure by which the Defendant, the Parliamentary and Health Service Ombudsman (the PHSO), examined her complaint against the National Health Service Trust (the Trust) who were caring for her late mother.
It was argued that the applicant had not brought the application for judicial review within the short 3 month period. The Courts are normally strict about this.
The applicant was a litigant in person and said that the decision not to review the actual decision was the decision she was asking the Court to review and also that she had made attempts to resolve her complaint with the PHSO by inviting alternative dispute resolution. This was not taken up by the PHSO.
The judge reiterated that the fact that a Claimant has been pursuing ADR does not suspend the requirement that claims for judicial review are to be made promptly and in any event within three months. Judicial review is in principle a remedy of last resort It follows that where a potential claimant expeditiously seeks a reasonable way of resolving the issue without litigation, “the court will lean against penalising him for the passage of time and will where appropriate enlarge time if the alternative expedient fails” (R v Hammersmith and Fulham LBC ex p Burkett [2001] Env LR 684 at §14). The court should encourage the parties to use an alternative dispute resolution procedure if the court considers that appropriate (R (on application of Cowl) v Plymouth City Council [2001] EWCA Civ 1935).
The judge found that “considering whether there is an objective reason for the delay, it is apparent that Ms. Harutunian was cognisant of the time limitation at the point of the August decision, to the extent that she prioritised the court over her preferred ADR course. It was in August that the PHSO indicated that there was no further internal process. Ms. Harutunian remained in communication with the PHSO from July 2022 to August 2022. There is no identifiable prejudice to the administration of justice or to the Defendant. Ms. Harutunian was awaiting the outcome of the PHSO decision as to whether it would review the July decision. If they had decided in Ms. Harutunian’s favour, it may have obviated the need for litigation. Ms. Harutunian acted reasonably in taking all the steps along the path laid out by the PHSO; with judicial review being a remedy of last resort. Ms. Harutunian argues that a flawed approach underlies both the July and August decisions and so it is wholly understandable that she waited until the August decision before embarking on proceedings. These circumstances provide good reason to extend time.”
The judge decided to extend time saying that “In relation to the Claimant’s application, in all the circumstances of this case, the extension required to bring the application in relation to the July decision within 3 months is under a month. Utilising the court’s general powers of management, pursuant to CPR 3.1 (2), I exercise my discretion to extend the time for service of the application for permission for judicial review”
The judge decided to allow the judicial review application to continue. The decision again highlights the leeway that the Courts will allow for parties to try to resolve disputes before resorting to litigation. The decision is in line with the movement towards mandatory alternative dispute resolution and the case of Churchill v Merthyr Tydfil which will shortly be decided by the Courts. It also signals that in judicial review cases the Courts will bend over backwards to allow people to try to resolve their disputes before going to Court, and this overrides the 3 month time limit.
If you are interested in mediating your dispute please get in touch at enquiries@promediate.co.uk