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Calling time on mora

17 May 10

A European case on the Public Contracts Regulations could potentially affect all judicial challenges to administrative actions

by Gordon Downie

The rules governing judicial review in Scotland (in common with those elsewhere) entitle parties who wish to challenge unlawful conduct by public authorities to seek redress, provided they bring their claim within a reasonable time. Failure to comply with this requirement can result in the rejection of the challenge on grounds of “mora, taciturnity and acquiescence”.

This requirement (mirrored in other jurisdictions) serves the public interest by avoiding the disruption which would be caused to the proper performance of public functions by challenges brought long after the relevant decisions have been taken. The Gill review of the civil courts (at chapter 12, para 239) endorsed the need for this requirement, whilst recommending that it be re-formulated more precisely to require that challenges should be brought promptly and, in any event, within three months, subject to the court’s discretion to permit a petition to be presented outwith that period.

So what does promptness (or its corollary, delay or mora) actually mean? The answer to that question is an inherently uncertain one, usually viewed as something which can only be determined by the court on a case-by-case basis. It may, for instance, require a challenge to be brought within days, or it may permit a longer period to elapse. But do all parties seeking judicial review necessarily have to accept this degree of uncertainty?

A recent decision of the European Court of Justice suggests not.

Mora in Scots judicial review

In Scots law, mere delay is not sufficient grounds for rejecting an application for judicial review; there must in addition be taciturnity and acquiescence. Indeed, as Lord Glennie put it in United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831 at [29]: “The essence of the plea is acquiescence, to be inferred from the petitioner’s inaction. Although the three elements of the plea overlap and, indeed, coalesce, I think it is helpful, in considering a plea of mora, taciturnity and acquiescence, first to consider separately the questions of mora and taciturnity before going on to assessing what inferences fall to be drawn from those factors in the context of the whole of the surrounding circumstances.”

The focus of enquiry is therefore on the conduct of the would-be applicant and the inferences sought to be drawn from that conduct, rather than the impact of that conduct on other parties. Thus, neither prejudice nor reliance is a necessary element of the plea (Somerville v Scottish Ministers 2006 SLT 96, per the Lord President at [94]).

Lord Glennie’s judgment offers the following useful summary of what mora will involve: “Mora simply means delay beyond a reasonable time. What is a reasonable time will depend on all the circumstances. The requirements of good administration rank high amongst those circumstances.… In assessing what is a reasonable time, account must, of course, be taken of the complexity of the matter, and the need to take advice, gather information, and draft proceedings. In some cases, this will require considerable time; but in others, because the issues are narrow and may already be well known at the time of the decision, there will be no reason why the petition cannot be prepared and lodged within weeks. Other factors may dictate that the aggrieved party may have to move with particular expedition. For example, he may be aware that other parties are in fact organising their affairs on the strength of the decision, or are intending to do so. In such circumstances, he will need to get a move on.”

Thus, where a reasonable time has elapsed in circumstances where the applicant has been taciturn (i.e., has not given some indication of his intention to raise judicial review proceedings), then the court will be entitled to infer that he has acquiesced in the decision subsequently challenged.

The Uniplex ruling

In its judgment of 28 January 2010 in Case C-406/08, Uniplex, the European Court gave a preliminary ruling on the validity of the requirement, under reg 47(7)(b) of the Public Contracts Regulations 2006, that any application to the court in respect of a breach of the regulations must be brought “promptly and in any event within three months” of the cause of action arising. The 2006 Regulations, and the Public Contracts (Scotland) Regulations 2006, which are substantially identical for present purposes, implement the relevant EU directives on the competitive procurement of works, services and goods by contracting authorities.

The question put to the court was whether reg 47(7)(b) was consistent with the requirement of article 1(1) of Directive 89/665/EC that member states take steps to ensure that “decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible”.

The court decided that the limitation period was inconsistent with Community law, as it was not sufficiently certain or predictable in its application to satisfy the requirement for effective review specified in article 1(1). Specifically, the court ruled at paras 39 and 40 of the judgment:

“The objective of rapidity pursued by Directive 89/665 must be achieved in national law in compliance with the requirements of legal certainty. To that end, member states have an obligation to establish a system of limitation periods that is sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations....

“Furthermore, the objective of rapidity pursued by Directive 89/665 does not permit member states to disregard the principle of effectiveness, under which the detailed methods for the application of national limitation periods must not render impossible or excessively difficult the exercise of any rights which the person concerned derives from Community law, a principle which underlies the objective of effective review proceedings laid down in article 1(1) of that directive.”

Thus, the court held that the promptness requirement imposed by reg 47(7)(b) (although not the three month limit) was invalid as a matter of EU law. It is clear that it was the inherently uncertain nature of this requirement which concerned the court.

Wider implications

Looking at the paragraphs of the Uniplex judgment quoted above, it seems clear that the court was not basing its ruling on the requirements of Directive 89/665/EC, but rather on the combined requirements of (a) the principle of legal certainty, and (b) the principle of effectiveness, which constitute fundamental principles in the EU legal order. On that basis, it is quite possible that Uniplex has the potential to be applied in future cases which go far beyond the boundaries of procurement law.

Taken to its logical conclusion, in fact, the Uniplex ruling looks capable of preventing the application of a promptness requirement (or at least one which is not sufficiently “precise”, “clear” and “foreseeable”) to any judicial review proceedings in which a party is seeking to assert directly effective rights under EU law. So, for instance, such a requirement may no longer be available to a public authority accused, for instance, of breaching EU environmental, consumer protection or equality laws.

So how would the defence of “mora, taciturnity and acquiescence” survive scrutiny under a Uniplex approach? On the one hand, Uniplex would not seem to strike at those aspects of the defence which catch what one might describe as “active acquiescence”, e.g., where someone has written to the decision maker expressly confirming his acceptance of a decision and then seeks to challenge it. On the other hand, the use of the defence in cases of “passive acquiescence”, e.g., where the would-be applicant has failed, in Lord Glennie’s words, to “get a move on”, does seem inconsistent with the Uniplex approach. As the European Court put it, “a limitation period, the duration of which is placed at the discretion of the competent court, is not predictable in its effects” (para 42). That criticism certainly seems applicable to a situation where the question of whether or not someone has delayed beyond a reasonable time before raising judicial review proceedings can only be answered after proceedings have been launched.

There are bound to be attempts to persuade the courts to read Uniplex as applying only in the procurement field – and further references to the ECJ to test the matter. In the meantime, however, it is worth speculating perhaps as to what “back stop” time limit can legitimately be applied in judicial review proceedings? Given that the statutory time limit at issue in Uniplex is based on that applying generally to judicial review in England & Wales, the High Court would presumably be able to apply the three month deadline without requiring relevant applicants to satisfy a promptness test as well. It is less clear, however, what approach the Court of Session would adopt in the absence of any explicit deadline under Scots law at the moment.

  • Gordon Downie is a partner at Shepherd and Wedderburn LLP

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