In a judgment which will have wider implications for applications to extend time outside the Planning Court, the Court of Appeal confirmed the correct approach to the jurisdiction to extend time for the service of a claim form in respect of planning statutory review claims under s.288 of the Town and Country Planning Act 1990, but also addressed the operation of CPR 7.6(3) and the approach to be taken by claimants in the event of delays caused by a court office in issuing a claim form.

In brief summary, the s.288 claim was filed well within the 6 week statutory period, but the Claimant’s solicitors did not alert the Court to the statutory deadline or take sufficient steps before the deadline expired. A single email marked “high importance” was sent prior to the expiry of time. Post expiry of the deadline, the Claimant’s solicitors did continue to chase the Court Office. The key timings were as follows:

18 April 23 - Claim Filed  

4 May 23 – Time for s.288 claim expired

11 July 23 – Claim Form issued by the Court Office

12 July 23 – Claim Form served on SoS

13 July 23 – Claimant makes extension of time application

The Court of Appeal set out the following principles:

• The correct test for an extension of time application in a s.288 case is that set out in R(Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355: CPR r. 7.6 applied by analogy. The test in Corus UK Ltd v Erewash Borough Council [2007] 1P & CR22 has been superseded.
• Under CPR r. 7.6, the first step is that a claimant has to show first that it has taken all reasonable steps to serve the claim form within the relevant period: events after the expiry of that period are strictly irrelevant to the question of whether reasonable steps had been taken.
• The second step is that the application for an extension of time has been made promptly. Where the expiration of time is not connected to the issue of any documents by the Court Office, the analysis of promptness must start from the date on which time expired.

Applying those principles to the facts, the Court of Appeal allowed the appeal. It found that the Claimant had not taken all reasonable steps – the Court had not been alerted to the urgency at the outset; the Claimant had not chased by email or telephone; and had not attended in person or made clear the time limit and the consequences of failure to issue in time.

As regards promptness, the Court of Appeal was clear that the application to extend time had not been brought promptly: such an application should be brought before the expiry of the deadline. If not, promptness must be calculated from the expiry of the deadline.

Michael Fry acted for the successful Appellant, the Secretary of State, instructed by the Government Legal Department.

The judgment may be found here.

A recording of the hearing may be found here.