After reviewing earlier case law in his Court of Appeal decision, Lord Justice Moore-Bick noted how “much had changed” in the years since some of cited cases were heard. Not only had the courts become “far less tolerant of delay”, there had also been a significant reduction in legal aid which, in turn, had led to an increase in the number of litigants in person (12). However, citing his own decision in Hysaj, Moore-Bick LJ noted that:
“it is particularly important for [judicial review] proceedings to be started promptly and pursued with diligence … there is no reason in principle, therefore, why the court should take a more relaxed approach to compliance with the rules than it would in private law proceedings; if anything, there are grounds for adopting an even stricter approach”
Again citing Hysaj, Moore-Bick LJ noted that, while it was “unfortunate” than many litigants were forced to act on their own behalf, “that cannot on its own provide a good reason for failing to comply with the rules” (15).
In this particular case, Moore-Bick LJ, explained, while it was public law claim, it also did not appear to raise any questions of wider importance. As such, there was no strong public interest in granting the appellants a time extension (16). In such circumstances, he said, the courts should treat such matters as if they were a private law claim. He then reiterated that:
“a shortage of funds does not of itself provide a good explanation for the delay, nor does it constitute grounds for extending time”
In essence, a litigant who has applied – but not obtained – legal aid funding is in the same position as someone who cannot afford legal representation: they must either represent themselves, or abandon their claim unless or until they are able to instruct a solicitor (17). More generally, while delays in obtaining legal aid was a factor that the courts could take into account when a party failed to comply with procedural requirements, it was “no longer appropriate” to treat it as a “complete answer” (18).
However, in light of the “degree of uncertainly” that surrounded this issue – not least from solicitors – Moore-Bick LJ ultimately permitted the extension of time, on the basis that refusing the extension “would be to impose on these appellants greater prejudice than is justified by the delay” (29). As a result of this decision, the appellants would be permitted to have their application for permission to apply for judicial review reconsidered at an oral hearing (30).