Navigating Time Limits in Judicial Review: What Happens When ADR Fails?
Neutral Citation: [2025] EWHC 2479 (Admin)
A recent High Court decision, R (Weis) v Commissioners for HMRC, provides crucial guidance for practitioners on two perennial challenges in public law: securing an extension of time for a judicial review and understanding how the pursuit of Alternative Dispute Resolution (ADR) affects that timeline.
Mr Justice Sheldon granted an extension of time for a claim filed over two years late, offering a nuanced application of the principles set out in the leading case of Maharaj. The judgment clarifies that while engaging in ADR and other processes does not automatically stop the clock, it forms a critical part of the court’s broader assessment of whether there is a “good reason to extend time.”
The Background: A Multi-Million Pound Dispute over Domicile
The claimant, Aubrey Weis, was engaged in a long-running dispute with HMRC over his tax status. The core of his judicial review challenge was a claim of legitimate expectation. Mr Weis argued that a letter from HMRC in 2000, confirming he was not UK-domiciled, coupled with subsequent conduct, gave him a binding assurance that he would not be taxed retrospectively on a different domicile basis.
This assurance was crucial. Relying on it, Mr Weis filed his tax returns as non-domiciled and made offshore investments. HMRC later changed its position, issuing closure notices in 2019 that resulted in a tax liability of approximately £3.6 million.
Following the statutory review, Mr Weis did not immediately issue judicial review proceedings. Instead, he pursued a series of alternative avenues:
- Internal HMRC Complaints Process: He raised the legitimate expectation point through a tier 1 and tier 2 complaint, which were rejected.
- Adjudicator’s Office (AO): He referred the matter to the AO, an external complaints body, but due to a miscommunication, his complaint was closed without being considered.
- Alternative Dispute Resolution (ADR): The parties engaged in an ADR process, which was paused due to Mr Weis’s ill health in March 2023 and never reactivated.
It was only in June 2024—over 30 months after the conclusion of the statutory review—that judicial review proceedings were finally issued. HMRC argued the claim was hopelessly out of time and should be refused permission.
The Legal Test: “Good Reason to Extend Time”
The court was guided by the modern, holistic approach established by the Privy Council in Maharaj v National Energy Corporation of Trinidad and Tobago [2019] 1 WLR 983. Mr Justice Sheldon emphasised that the test is not simply whether there is a “good reason for the delay.”
Instead, the court must ask the broader question: is there a “good reason for extending time”? This broader test requires the court to consider all circumstances, including:
· The importance of the issues.
· The prospects of success of the claim.
· The presence or absence of prejudice to the defendant or detriment to good administration.
As Lord Lloyd-Jones stated in Maharaj, a long delay lacking excuse could still be forgiven if the claim is of sufficient importance and merit.
What the Court Decided: Key Findings
- ADR and Alternative Remedies Do Not Automatically Excuse Delay, But They Are Relevant
The court rejected the argument that pursuing the Adjudicator’s Office was a “suitable alternative remedy” that justified a stay of judicial review. The AO’s remit was limited to the process of HMRC’s complaint handling; it could not rule on the substantive legal question of whether a legitimate expectation existed. That was a matter solely for the courts.
However, and critically, the fact that Mr Weis had pursued these avenues was not irrelevant. The court found that his actions demonstrated he was not simply “sitting on his hands.” His continued assertion of his legitimate expectation through complaints and ADR showed he was actively challenging HMRC’s decision, even if through imperfect channels.
- Unexplained Inactivity After ADR Ends is a Major Risk
The court identified a specific period of 14 months of unjustified delay. This ran from the end of the ADR process in April 2023 until the claim was issued in June 2024. During this time, Mr Weis took no steps to chase the dormant AO complaint or to issue protective proceedings.
This finding underscores a vital practice point: once ADR concludes without resolution, the clock for judicial review starts ticking again with renewed urgency. Parties cannot assume that time spent in ADR grants them an indefinite grace period. A deliberate decision to pause litigation carries the risk that any subsequent delay may be held against them.
- The “Broader Test” Saved the Claim: Merits, Importance, and Lack of Prejudice
Despite finding a 14-month period of unjustified delay, Mr Justice Sheldon held there was a “good reason to extend time” when applying the broader Maharaj test. This was based on three key factors:
· Arguable Merits: The court found the legitimate expectation claim had a “realistic prospect of success.” It was not based solely on the 2000 letter but on a course of conduct by HMRC that arguably provided clear and unambiguous assurances. The merits were not clear-cut, making the case suitable for a full hearing.
· Importance to the Claimant: While not a matter of wide public interest, the claim concerned a £3.6 million tax liability—a sum of profound importance to the individual involved.
· No Prejudice to Good Administration: HMRC was aware of the legitimate expectation argument throughout. Furthermore, the parallel tax tribunal appeal (which decided the underlying domicile issue) would have proceeded regardless. The judicial review would likely have been stayed pending the tribunal’s outcome, meaning HMRC was in no worse a position due to the delay.
Key Takeaways for Practitioners
- The Test is Holistic: When seeking an extension of time, do not focus solely on explaining the delay. Be prepared to argue the broader picture: the strength of your case, the importance of the issue, and the lack of prejudice.
- ADR is a Factor, Not a Get-Out-of-Jail-Free Card: Engaging in ADR or complaints procedures is a relevant factor that shows a claimant is acting reasonably. However, it will not automatically excuse a long delay, especially if the alternative forum cannot grant the primary remedy sought.
- Post-ADR Inactivity is Dangerous: Have a clear litigation strategy for when ADR ends. If it fails, move promptly to issue proceedings. Do not allow a significant gap to open up without a compelling reason.
- Consider Protective Claims: In high-stakes cases, consider issuing a protective claim form to stop the clock, while simultaneously pursuing ADR. This mitigates the risk of being timed out by a failed or protracted ADR process.
In conclusion, the Weis decision provides a pragmatic framework for dealing with delayed judicial reviews. It affirms the court’s willingness to take a flexible, merits-based approach, while simultaneously issuing a stark warning to claimants: the pursuit of ADR must be part of a diligent and timely litigation strategy, not a substitute for one.