Anonymised Summary of Judgment delivered by Judge O'Donnell (1 August 2025)

Factual and Procedural Background

This judgment concerns an interlocutory application in judicial review proceedings in which the individual applicant (hereafter "Plaintiff") and a corporate applicant (hereafter "Company A") were granted leave to apply for judicial review. The application before the court was made by the first named respondent (hereafter "Company B") seeking orders to set aside that grant of leave in respect of two of the three decisions originally challenged by the applicants. The other named respondents did not participate in the application.

The procedural record in the opinion includes the following timeline and procedural steps (as stated in the judgment):

• The applicants were recorded as having been granted leave to apply for judicial review by the High Court on 19 February 2024 (the judgment also records that Judge Hyland granted leave on 4 March 2024). An original statement of grounds was filed on 1 February 2024 and an amended statement of grounds was filed on 5 March 2024.
• One of the items of relief authorised at the leave stage was an order under Order 84, rule 21(4) of the Rules of the Superior Courts (RSC) extending time for the bringing of the application. The grant of leave authorised the filing of an amended statement of grounds.
• Company B issued a notice of motion dated 25 April 2024 seeking to set aside the grant of leave in relation to two decisions: (i) a decision dated 17 May 2021 invalidating a commencement notice submitted by the applicants, and (ii) an Enforcement Notice dated 2 August 2022. Company B relied on grounds that the challenges to those decisions were out of time, that the grant of leave amounted to an abuse of process because of material non-disclosure, and (in relation to the Enforcement Notice) that alternative remedies had not been exhausted.
• At the hearing of Company B's motion counsel for Company B clarified that the motion was no longer being pursued on the basis of an allegation of material non-disclosure. The judgment emphasises that the allegation was serious and that its abandonment without formal withdrawal was unsatisfactory, but that this factor alone did not require refusal of Company B's application.

The underlying factual assertions advanced by the applicants (summarised from the amended statement of grounds and grounding affidavit and reproduced as pleaded in the judgment) were as follows:

• The Plaintiff undertook fit-out works at two adjoining premises in The City. The applicants obtained a Disability Access Certificate and a Fire Safety Certificate and lodged a Commencement Notice on the Building Control Management System pursuant to the Building Control Regulations.
• On 17 May 2021 Company B informed the applicants that the Commencement Notice was invalid for reason that the application did not state a valid date for a final grant of planning permission. The applicants said planning permission had originally been granted in 2015, that planning permission had expired, and that a retention application (for retention of works and modifications) was later granted on 30 March 2023.
• A new Commencement Notice was applied for on 24 November 2021 and invalidated on 26 November 2021. The applicants accept that works began after that invalidation and acknowledge default under the Building Control Regulations.
• Company B inspected the premises on 2 December 2021 and produced an Inspection Report noting that a warning letter, an enforcement notice and potential prosecution may be pursued. The applicants contend they were not supplied with inspection notes until after service of an enforcement notice.
• Warning letters and correspondence were exchanged between the parties in December 2021 and early 2022. Company B served an Enforcement Notice on 2 August 2022; the applicants criticised aspects of that Enforcement Notice (including that it referred to breaches of the Building Regulations rather than the Building Control Regulations) and engaged with Company B by solicitors and technical advisers.
• Following further exchanges a District Court annulled the Enforcement Notice and (the applicants contend) determined that the earlier invalidation of the Commencement Notice was itself invalid. Company B then brought judicial review proceedings which resulted in an order of certiorari on 29 January 2024.
• The applicants assert that works were subsequently completed and practical completion was achieved on 28 July 2023; at a District Court licensing hearing on 5 September 2023 a Senior Fire Officer gave evidence of no objection to the works.
• On 15 November 2023 the applicants applied for registration of a Certificate of Compliance on Completion; on 4 December 2023 Company B refused to register the certificate for stated reasons that the applicants challenge as flawed.

The principal reliefs sought by the applicants against Company B in the amended statement of grounds were:

1. An order of certiorari quashing Company B's decision of 4 December 2023 invalidating the Certificate of Compliance on Completion and refusing registration.
2. An order of certiorari quashing the Enforcement Notice dated 2 August 2022.
3. If necessary, an order of certiorari quashing Company B's decision dated 17 May 2021 purporting to invalidate the Commencement Notice submitted on 12 May 2021.

Legal Issues Presented

1. Whether Company B's application to set aside the High Court's grant of leave should be granted in relation to the 17 May 2021 decision (invalidation of the commencement notice) and the 2 August 2022 Enforcement Notice.
2. Whether the applicants' challenges to those two decisions are time-barred (i.e. were brought outside the relevant time limits), and, relatedly, whether an extension of time should be permitted.
3. Whether the grant of leave should be set aside on the ground of abuse of process due to material non-disclosure (an allegation which Company B abandoned at the hearing of its motion).
4. Whether the applicants failed to exhaust alternative remedies in relation to the Enforcement Notice (and whether that failure should lead to the setting aside of leave).
5. Procedural and jurisdictional question: the appropriate standard and circumstances in which the High Court should exercise its inherent jurisdiction to set aside a previously granted order giving leave to apply for judicial review (including the interplay between the lower threshold for leave and the higher negative burden on a party seeking to set leave aside).

Arguments of the Parties

Company B's Arguments (moving party)

• Company B submitted that the applicants' challenges to the decisions of 17 May 2021 and 2 August 2022 were clearly out of time and therefore the grant of leave in respect of those decisions was plainly wrong and should be set aside.
• Company B initially relied on an allegation of material non-disclosure by the applicants as a basis for setting aside leave, and argued that the grant of leave was therefore an abuse of process. At the hearing counsel for Company B confirmed that the motion was no longer being pursued on that basis.
• In relation to the Enforcement Notice Company B also argued that the applicants had failed to exhaust alternative remedies before seeking judicial review.
• Company B relied on authority emphasising the need for prompt challenges to administrative/quasi-judicial decisions and on cases in which relief was refused at the leave stage or after a full hearing where delay was decisive; Company B relied in particular on the Court of Appeal's observations in Arthropharm concerning the requirements of Order 84, rule 21.
• Company B emphasised public safety and regulatory concerns arising from the manner in which the works were executed and argued these considerations supported striking out the leave prior to a full trial.

Plaintiff and Company A's Arguments (applicants)

• The applicants emphasised that this was an application to set aside the grant of leave and not an application that itself determines whether an extension of time should be granted; the correct question is whether the grant of leave was plainly wrong.
• The applicants argued there is limited authority for setting aside leave on delay grounds and that Company B's reliance on planning-law authorities was misplaced where different statutory regimes and stricter time limits apply.
• The applicants explained reasons for delay in the amended grounds and grounding affidavit (including their decision to litigate in the District Court in relation to the Enforcement Notice and subsequent events) and sought an extension of time on the basis that the issues are closely related and a single High Court hearing would achieve finality and avoid multiplicity of proceedings.
• The applicants also argued that the proceedings engage discretionary remedies, and raised constitutional property-rights considerations relevant to the extension issue.
• The applicants objected to Company B's initial allegation of material non-disclosure as a serious allegation which should not have been floated and then abandoned; they requested formal withdrawal of that contention in the affidavit record.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by restating the established principles derived from the authorities summarised above. The judge explained the interaction between two distinct burdens:

• The burden on an applicant for leave to show that, if the pleaded facts are proved, there is an arguable case in law — a comparatively low or "light" threshold; and
• The heavier, negative burden on a party seeking to set aside a grant of leave to demonstrate that the leave plainly should not have been granted because the underlying proceedings are clearly unsustainable or unmeritorious.

The judgment distilled three practical propositions from the authorities (as set out in the opinion):

1. The jurisdiction to set aside rests upon the moving party establishing that leave plainly should not have been granted and that the underlying case is clearly unmeritorious; absent that, the matter should proceed to trial.
2. The jurisdiction should be exercised very sparingly and only in exceptional cases; it is analogous to strike-out for cases that are plainly unsustainable, but with extra caution because leave-filtering at the ex parte stage reduces the likelihood that plainly unmeritorious cases will be permitted to proceed.
3. The burden of proving that leave should not have been granted is heavy and is a negative burden, heavier than the burden on a party seeking leave to apply for judicial review.

Applying those principles to the present application, the court considered the following key points (in the order and terms expressed in the judgment):

• Company B's primary contention was that the applicants' challenges to the two decisions were clearly out of time and that any application for an extension of time must fail as a matter of law. Company B argued therefore that the leave granted was plainly wrong.
• The court accepted that an application to set aside a grant of leave can be predicated on delay, and that there are precedents where leave was struck out on delay grounds. However, those precedents were limited and fact‑sensitive. The court emphasised that each such application must be decided on its own facts.
• Significant factual disputes existed between the parties (including public‑safety and regulatory concerns and contested factual assertions about compliance and timings). The judge found that many of those disputes could not be resolved fairly in an interlocutory motion that preceded the exchange of full pleadings and affidavits in the main proceedings.
• The court noted that the leave hearing had itself been aware of delay issues (delay had been addressed in the statement of grounds and the grounding affidavit) and that the High Court had nevertheless granted leave, authorising an application for an extension of time. That meant that the leave judge must have been satisfied that, on the material then before the Court, the applicants demonstrated an arguable case sufficient to justify leave.
• The court observed that Company B had not filed a statement of opposition to the main proceedings; while that was not a bar to its interlocutory motion, public bodies have a duty of candour and must clearly state that duty has been observed and that they intend fully to defend the substantive proceedings. The Court found that Company B's materials indicated that Company B intended to oppose the merits fully.
• Company B had initially advanced a material non-disclosure argument but withdrew it at the hearing. The court criticised the raising and then abandonment of a serious allegation without formal withdrawal, but held that this procedural misstep alone did not decide the application.
• On the narrower question whether the grant of leave was "plainly wrong"—that is, whether there was no prospect that a court at trial would refuse to grant an extension of time—the judge concluded that Company B had not discharged its heavy negative burden. The applicants had put the extension question before the court from the outset, had pleaded reasons for extension in their amended grounds and grounding affidavit, and the full evidential context that would be before a trial judge was not yet available to resolve the delay point conclusively on an interlocutory basis.
• The court therefore concluded that it was appropriate to permit the substantive proceedings to proceed to a full hearing where Company B could fully agitate its delay and other defences; that resolution in a trial was preferable to a pre‑emptive interlocutory determination which may effectively replicate a trial.

The court expressly avoided deciding the merits of the underlying challenges or whether the applicants are (ultimately) entitled to an extension of time. Instead, the judge left those contested factual and legal issues to the trial judge, consistent with the principle that interlocutory applications should not become a proxy trial of the substantive issues.

Holding and Implications

CORE RULING: The application by Company B to set aside the High Court's grant of leave in relation to the 17 May 2021 decision (invalidation of the commencement notice) and the 2 August 2022 Enforcement Notice was REFUSED. The judge concluded that Company B had not proved that the grant of leave was plainly wrong or that the underlying case was clearly unmeritorious.

Direct implications and orders made by the court (as recorded in the judgment):

• The substantive judicial review proceedings are to proceed to hearing. Company B is permitted to advance its arguments (including in relation to delay) in opposition at the substantive hearing.
• The matter was adjourned to the Non‑Jury Judicial Review directions list, with a recommendation that efforts be made to accelerate the proceedings to allow for a prompt hearing.
• The court expressed the view (delivered electronically) that the applicants should be entitled to the costs of Company B's interlocutory application, but that any costs order should be stayed pending the determination of the overall High Court proceedings.
• The application for final orders was adjourned to 10:30 a.m. on Thursday 18 September 2025.

Broader implications (as stated or implied in the judgment):

• The judgment reinforces that the jurisdiction to set aside a grant of leave exists but must be exercised sparingly. A moving party bears a heavy negative burden to show that leave was plainly wrongly granted.
• The decision emphasises that contested factual disputes—particularly those touching on public‑safety or regulatory matters—are generally more appropriately resolved at a full hearing rather than on interlocutory applications of the kind aimed at setting aside leave.
• The judgment does not purport to set a novel legal precedent; it applies established authorities and confirms the high threshold required to strike out a grant of leave.

Note: This summary is strictly confined to the materials and conclusions contained in the judgment under review. No factual or legal assertions beyond those expressly recorded in that judgment have been added.