R (Nash) v Barnet London Borough Council

Citation: EWCA Civ 1004

Nature of case:
Mrs Nash applied unsuccessfully for permission to appeal against the decision of the Administrative Court that her claim for judicial review was out of time. She wished to challenge a decision of her local council to outsource a number of its functions and services to private contractors, claiming there had been a lack of proper consultation by the Council in breach of its obligations under section 3(2) of the Local Government Act 1999.

The Court of Appeal held that the Council’s duty to consult arose at the formative stages of the process, meaning that any grounds for bringing a claim first arose with its decision to commence a public procurement process and not with the subsequent award of contracts. As Mrs Nash had waited for the award of contracts before commencing proceedings, her claim had been brought significantly out of time.

On behalf of Mrs Nash it was argued that, despite the making of these earlier council decisions, the House of Lords decision in R (Burkett) v Hammersmith & Fulham LBC [2002] 1 WLR 1593 provided authority for there being a right to challenge the Council’s final decision in any event. The Court of Appeal distinguished the case. Time would not be allowed to run from the date of the latest decision in every situation where a public law decision was made at the end of a process involving one or more previous decisions. It was important to identify which decision was in truth being challenged. Considerations of fairness and certainty also weighed against allowing Mrs Nash’s appeal.

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