High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"as soon as may be after a Vesting Order has been made the Department shall publish in the prescribed form and manner a notice, stating that the Vesting Order has been made…….."

Paragraph 5 (1)(b) provides:

"if any person aggrieved by a Vesting Order desires to question its validity……he may, within one month from the publication of the notice of the making of the Vesting Order, make an application for the purpose to the High Court in accordance with rules of court……"

Paragraph 5 (1)(c) provides:

"subject to head (b) a Vesting Order or the making of such an Order shall not be questioned in any legal proceedings whatsoever, and a Vesting Order shall become operative at the expiration of a period of one month from the date on which the notice of the making therefore is published in accordance with the provisions of head (a)."

"….the legislative intention is that questions as to invalidity may be raised on the specified grounds in the prescribed time and in the prescribed manner, but that otherwise the jurisdiction of the Court is excluded in the interest of certainty."

Mann LJ's approach was approved by the Court of Appeal [1994] 1 All E R 694.

"……an appeal to the High Court or a Judge thereof pursuant to the provisions of any statutory provision must be brought in accordance with the rules of this Part."

Rule 14(1) provides:

"Every appeal must be brought by Originating Motion entitled in the matter of the relevant statute and shall specify the grounds upon which the appellant relies".

Rules 15 provides for service of the Notice of Motion on any party affected by the appeal.

Rule 1 goes on, "whether in respect of time, place, manner, form or content or in any other respect…..". Clearly the requisite form of failure has arisen in this case, because it applies to a failure in any respect.

Rule 1 then provides that "the failure shall be treated as an irregularity and shall not nullify the proceedings, any step in the proceedings, or any document……" The stage is reached where, on analysis of the rule, if the steps that have been taken under Order 53 constitute "proceedings", they amount to an "irregularity".

"It is said that this rule does not cover this case for two reasons. First it is said that at the time of the Registrar's Order there were no "proceedings"; because no Writ had been issued. So the rule, it was said, did not apply. I think this is far too narrow an interpretation. This rule should be construed widely and generously to give effect to its manifest intentions. I think that any application to the Court, however informal, is a "proceeding". There were "proceedings" in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the Registrar".

I am satisfied that there are "proceedings" in the present case and that Order 2, Rule 1 is capable of applying to the ex-parte application that has been made in this case. It is necessary to return to the issue of time limits at this stage.

"….real problem would be again the time limit, because if he were now to seek to challenge by way of section 288, it is of course long after the six-week period has elapsed. Mr Charleton (of Counsel) would seek to overcome that difficulty by regarding the application to apply for judicial review as the application to the High Court under the section 288, he would as it were, refer the amendment back. He is in difficulties about that, it seems to me, because the application to move for judicial review is an application to apply for a motion calling for judicial review. It is not itself a motion to commence the proceedings. Whereas an application under section 288 is governed, as it seems to me, by Order 94 Rule 1 (and that provided that the application be made by Originating Motion. It is the direct equivalent of the rules applicable in this case). There has not been any Originating Motion. The application for judicial review does not constitute an Originating Motion and even if it did, it would still have been outside the six-week time limit".

Order 2, Rule 1(2) provides:

"… the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks fits, set aside either wholly or in part the proceedings in which the failure occurred …….. or exercise its powers under these rules to allow such amendments(if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit".

The application by JGS Services Ltd and Others.

"An appeal to the High Court pursuant to the provisions of any statutory provision must be brought in accordance with the rules of this part."

Rule 14 provides that,

"Every appeal shall be brought by originating motion entitled in the matter of the relevant statute and shall specify the grounds on which the appellant relies."

"The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules, or by any judgement, order or direction, to do any act in any proceedings."

Accordingly Mr Horner contends that Order 3 Rule 5 gives the Court power to extend the one-month period and that it should do in this case. However, Order 3 Rule 5 does not allow the Court to extend the time in relation to a statutory time limit. Order 3 Rule 5 applies to times that are fixed by the Rules, a judgment, an order or a direction. That does not include the one-month time limit fixed by the 1972 Act. Order 3 Rule 5 therefore does not entitle the Court to extend the time within which this application can be made. Accordingly, I am satisfied that the wording of paragraph 5 does not have the effect of achieving a different legal consequence under the 1972 Act to that which arises under the English schemes.

"Having started with the proposition that the paramount objective is to ascertain the intention of the legislature in enacting the provisions under construction, the particular task of the Court is to determine whether it is intended that the act in question could only be carried out within the prescribed time or whether it could validly be done after the expiry of that time."

"Further it is apparent from the Court's case law that the 'right to a Court', of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person's access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 (1) if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be achieved.

The rules on the time limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainly. Those concerned must expect those rules to be applied. However the rules in question, or the application of them, should not prevent litigants from making use of an available remedy. "

"The case stated is to be transmitted to the Court of Appeal within 14 days of being dispatched by the Clerk of Petty Sessions to the Applicant. Within the same time he is to serve a copy on the other party. Its clear objective is to prevent possible delays in the process of appealing by way of case stated. That in our opinion is a legitimate aim. We do not find it possible, however, to accept that there is a reasonable relationship of proportionality when the applicant is altogether barred from presenting his appeal because he fails for a period to serve a copy of the case on the other party, even though no prejudice has accrued to that party. We consider that this would constitute a breach of Article 6 (1) of the Convention. It is incumbent upon us by virtue of Section 3 [of the Human Rights Act 1998] to read and give effect to legislation in a way which is compatible with the Convention Rights. This can be done by constructing Article 146(9) as directory rather than mandatory, contrary to the previous case law, whose binding authority is over-ridden by the 1998 Act.

We would therefore hold that we should now interpret Article 1469 as directory rather than mandatory. When one does so, and it appears that no prejudice was caused to the respondent by the delay in serving upon it a copy of the case, it seems to us clear that we ought to extend the time for taking that step and allow the appeal to proceed."

Mr Horner on behalf of the applicants invites this Court to adopt precisely the same path as the Court of Appeal adopted in Foyle in order to extend the time in this case.

"We do not consider that it would be possible to construe Sch 2 as directory, even if we were persuaded that there had been a breach of Art 6 (1). The existence of Article 12(5) negates that - if the provisions of Sch 2 were directory there would be no need for Article 12(5). Nor, as we have already held, is it easy to see how Article 12(5) could be construed so as to include objections as well as applications."

"That is particularly important in the planning context, as a number of cases in the judicial review field have recognised, because it is of considerable importance that land owners and public authorities know exactly where they stand as soon as is reasonably possible. Moreover, and it should be borne in mind that in addition to the land owner who is seeking a determination of his rights in lodging his planning appeal, there will also be third parties who may well be affected by the outcome of an appeal." (Paragraph [33])

The application of Scalene Investments Ltd

First of all, it is to be noted that paragraph 5 leaves it to the respondent to determine the manner of publication in any particular case. In so doing, the respondent must consider what would be appropriate in order that notice might be given to those who may be affected. I consider that the respondent, in the exercise of its judgment in this regard, ought to decide what is "appropriate" rather than what might be said to be "necessary". The respondent's discretionary area of judgment should not be restricted to judging only what is the bare minimum of notice that might be given, but rather should entitle the respondent to consider what is appropriate notice in the circumstances.

Secondly, if the respondent decides to adopt a very limited circulation of the notice there will be circumstances where circulation would be so limited that it would not be considered to be "publication" for the purposes of paragraph 5.

Thirdly, the respondent might consider it appropriate to publish in more than one newspaper on the same day in order to reach those who may be affected. In those circumstances " publication" is not a single event but must include each incident of the notice being published. Publication in more than one newspaper may not be strictly required in certain cases in order to comply with paragraph 5, but it is not prohibited. The present problem would not arise when all the incidents of publication occur on the same day.

Fourthly, the respondent might consider it appropriate to publish on more than one day, in order to reach those affected. Publication on more than one day may not be strictly required, but it is not prohibited. It was probably not required in this case. The respondent considered it to be appropriate, and did so in good faith. I consider that the requirement in paragraph 2 of the schedule to publish on more than one occasion does not require paragraph 5 to be interpreted as prohibiting publication one more than one occasion, if the respondent considers that that is appropriate in the circumstances. Similarly, I consider the wording of paragraph 5(1)(a) that publication should be "as soon as may be", does not prohibit publication on more than one occasion, if the respondent considers that to be appropriate.

The Statutory Review

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provision shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

The challenge of Harrisons and Others.

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The third complaint relates to the timetable for possession. A preliminary point arises as to the character of the challenge that might be made to the possession timetable. Schedule 6 of the 1972 Act provides in paragraph 5(1)(b) that parties aggrieved have the right to challenge the Vesting Order on specified grounds. In addition, paragraph 5(9) of the schedule provides for a decision in relation to possession, in that on or after the date of vesting the Department may enter upon and use the land to which the Vesting Order relates. The Department is granted a statutory discretion in relation to the date of possession.

"The amendment to the Planning Order in March 2003 now allows us to enter a development agreement before we own the land. A development agreement is likely to be in place by mid September and ideally given the size of the scheme the Department would like to have the funding agreement with the CGI in place before making a Vesting Order. However, this would mean delaying the final decision on the Vesting Order until mid to late October at the earliest. Therefore the Victoria Square landowners and tenants would not receive any certainty about what is to happen to them until late October at the earliest and would be unlikely to begin to make concrete plans to relocate until they have this certainty".

"This case is not about compensation. It is about the unreasonable implementation of a scheme in an unnecessarily destructive and punishing manner. Compensation is not the answer."

"The only commitment came on the 24^th October at the date of the FDS (final decision statement)".

"This imposed too short a timescale. Even on their own advisors figures, which I dispute, eight months is required for Harrisons to relocate".

"…… I would be utterly flabbergasted if any of them (the respondents advisors) advised that a three or four month period was reasonable to relocate the entire business population of a significant part of Belfast City Centre".

Mr Carruthers of Chartered Surveyors, Crothers, stated –

"Finally it is wholly unrealistic and unfair to expect applicants to deliver up possession by the 18^th February 2004. It would not reasonably be expected that they would be able to acquire a suitable alternative premises in Belfast within such a restricted timescale".

[Harrisons gave the undertaking and secured extended possession]

The challenge of Scalene Investments Ltd.

[The challenge was rejected]