As all public lawyers know, a judicial review claim must be brought “promptly and in any event not later than three months after the grounds to make the claim first arose”: CPR r. 54.5(1) clearly states as much. But how much time does the requirement to act “promptly” allow a prospective claimant in practice? Where does the limit lie?
The answer to this question is less clear. The prospective claimant’s lawyers are compelled to foray into the twilight world of judicial discretion in their efforts to advise as to when the time-limit for bringing a judicial review claim will expire in any particular case.
Lord Bingham observed that, “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. … The broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law.” (See his Sir David Williams lecture of 16 November 2006, available here.)
So, is the requirement of promptitude under CPR r. 54.5(1) so broad and loosely-textured as to tend to arbitrariness and thereby to offend the rule of law? Here, as in so many other matters nowadays, the EU and England are divided.