In Odubajo v Secretary of State for the Home Department  CSOH 2, the Court of Session has ruled that the three-month time limit for raising judicial review proceedings starts on the date of the decision, even though the person affected may not have been notified of that decision. This is a departure from what everyone previously thought in Scotland – which was that you cannot be expected to challenge a decision until you have been notified of it.
In this case, Mr Odubajo had made fresh representations under paragraph 353 of the Immigration Rules. They were rejected on 5 June 2019. The petition for judicial review was not lodged until 6 September 2019, three months and one days later. Mr Odubajo argued that the three-month clock only began running on 7 June — the date on which his solicitor received the decision letter.
Lord Ericht decided that the question of whether the three-month period began on 5 or 7 June “would benefit from consideration and clarification as there appeared to be uncertainty amongst practitioners which was reflected in the respondent [the Secretary of State] not taking a consistent line on this issue in previous cases”.
The three-month time limit for judicial review
Section 27A of the Court of Session Act 1988 requires that an application for judicial review in Scotland be made within three months, “beginning with the date on which the grounds giving rise to the application first arise”. This is not dissimilar to the English Civil Procedure Rules which require a claim for judicial review to be made “promptly” but with a long stop of three months.
The common theme in Scotland and England is that if a claim is not lodged within three months, the court retains a discretion to allow the claim to be made late. The difference is that in England, a claim can be dismissed if it not brought “promptly” even if it is brought within the three-month time limit. No such rule exists in Scotland.
The important question was when this three-month clock should start ticking. Alan Caskie, representing Mr Odubajo, argued that grounds for challenge could not “arise” until a person could bring a challenge — which they could only do once they knew about the decision. It was also argued that service of a posted decision only took effect “at the time the letter would be delivered in ordinary course of post”, in line with section 7 of the Interpretation Act 1978. That is particularly relevant given the majority of Home Office decisions are sent by what seems like third-class post and commonly arrive several days, even weeks, after the decision letter is dated.
JR clock starts to run on the date of decision
The Outer House found that the time limit for challenge runs from the date of the decision and not when the person first found out about the decision, referring among other things to the White Book (the bible on civil procedure in England) which favoured the Home Office position. However, the timing of when the person was notified will be relevant for considering whether an extension of time should be granted.
Lord Ericht explained that there needed to be
…certainty about the validity of administrative decisions. A time limit contributes to certainty… the starting of the calculation of the time limit from the date of the decision contributes towards that certainty.
The starting of the time limit period at some later date upon which a petitioner has become aware of the decision is not conducive to that certainty. The public authority and any third party relying on the decision are unlikely to have any knowledge about when the petitioner has become aware of the decision and therefore will be unable to proceed with certainty after the passing of three months. Further, using the date of decision will generally allow the proceedings to progress more expeditiously once they are brought: there may be difficulties in proving the date on which the particular petitioner became aware of the decision, whereas the date of the decision will usually be non-contentious and will not require proof.
He concluded that “the three month time limit under section 27A(1)(a) begins to run on the date on which the decision is made, but if the decision is not received until a later date that can be taken into account in considering whether to extend the time under section 27A (1)(b).”
The upshot in this case was that although the judicial review had not been brought within the three-month time limit, it was equitable to extend the time limit. There was no prejudice to the Home Office in allowing the claim to be brought late.
A sensible if unwelcome outcome
This is a sensible decision overall from the Court of Session. What was compelling was the argument by Lord Ericht that there was unlikely to be any disagreement over the date of a decision. Whereas, quite commonly, there can be a real doubt over when a decision was “received” which might depend on how it was served. Scottish lawyers now have the same certainty as English practitioners about when that clock starts to tick.