R (Nash) v Barnet London Borough Council

The Court of Appeal has dismissed an appeal against the Administrative Court’s rejection of a judicial review challenge to Barnet London Borough Council’s decision to award two contracts to outsource certain services to private contractors.
 
At first instance, Lord Justice Underhill had accepted the Council’s argument that most aspects of the claim had been brought considerably out of time, since the challenge was in substance directed at the Council’s much earlier decisions to seek to procure private sector partners. The Judge accordingly refused permission on grounds of delay. The one aspect of the claim that was in time was not arguable and so permission was also refused on that ground. The claimant sought to appeal only in relation to the delay point.

Of significance for future cases, the Court of Appeal upheld the Judge’s analysis that the House of Lords’ decision in R (Burkett) v Hammersmith & Fulham LBC [2002] 1 WLR 1593 is not authority for the proposition that in every situation in which a public law decision is made at the end of a process which involves one or more previous decisions, time will run from the date of the latest decision, notwithstanding that a challenge on identical grounds could have been made to an earlier decision in the series. If the earlier and later decisions are distinct, each addressing what are substantially different stages in a process, then it is necessary to decide which decision is in truth being challenged; if it is the earlier, then the making of the second decision does not set time running afresh.

The judgment is available at:
http://www.bailii.org/ew/cases/EWCA/Civ/2013/1004.html

Dinah Rose QC and Iain Steele acted for the Council in the Court of Appeal.
Monica Carss-Frisk QC and Iain Steele acted for the Council at first instance.