HyNot judicial review decision highlights the importance of acting promptly

In judicial review cases, acting promptly is crucial. A recent High Court decision in HyNot v Secretary of State for Energy Security and Net Zero and another underlined this, stressing that the three‑month deadline for filing set out in the Civil Procedure Rules (CPR) is “a backstop, not a target” — especially where the subject matter involves a development of national interest. 

Here, Glyn Lancefield from our litigation team explores how the Court considered the requirement of promptness, the arguments made in the case and what this means for claimants considering judicial review.

The rules on timing in judicial review

Under Part 54.5(1) of the CPR, claimants must file their claims at court:

1.  “promptly”, and
2. within three months of the grounds arising.

The three‑month period is a strict deadline but the obligation of promptness means that the court may still refuse permission if a claim is left until the end of that period. 

What sparked the dispute?

The case of HyNot v Secretary of State for Energy Security and Net Zero and another related to the process of carbon capture and storage. The dispute arose from the Government’s decision to grant consent to the HyNet Carbon Dioxide Transportation and Storage Project in Liverpool Bay. The project involves three geological gas storage sites and forms part of the UK’s wider carbon capture and storage strategy, aiming to reduce emissions by storing carbon dioxide beneath the seabed.

The decision was made on 17 March 2025 by the Secretary of State and published on 24 April 2025, pursuant to the Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020. 

The Claimant, HyNot, is an environmental and climate‑focused campaign group. It contends that this form of power generation remains dependent on fossil fuels and risks diverting investment from alternative climate solutions. It also claimed that there were “several flaws” in the decisions of the Secretary of State for Energy Security and Net Zero and the Oil and Gas Authority to grant development consent and that they “failed to properly assess the risk of major accidents, as well as the impacts on climate change”.

HyNot was incorporated on 16 June 2025 and filed the proceedings the next day — exactly three months after the date of the decision. The Claim Form was filed at Court ‘protectively’ with the Claimant’s Statement of Facts and Grounds, along with supporting evidence, filed and served later on 4 July 2025.

The Interested Party in the proceedings was Liverpool Bay CCS Limited, the entity that had obtained the storage permit for the development.

The Court’s decision

Under Part 54.4 of the CPR, a claimant must obtain the court’s permission to proceed with a claim for judicial review. In this case, the Court held an oral hearing of the Claimant’s permission application.

In the King’s Bench Division Planning Court, Mr. Justice Saini refused permission based on the merits of the case. He also considered the submission made on behalf of the Secretary of State that permission should be refused because the claim hadn’t been brought promptly, breaching the obligation at Part 54.5(1)(a).

The Judge held that the decision was legally effective on 17 March 2025, marking the start of the three-month time limit, even though the Claimant wasn’t informed of the decision until 24 April 2025. He concluded that the Claimant hadn’t filed the claim promptly and would’ve failed the promptness requirement even if the three-month time period had begun on 24 April 2025.

The judgment states that:

“The primary obligation on a claimant is to apply promptly - the three-month period is in the nature of a backstop, not a target. A claimant cannot wait until the three-month period is about to expire and then seek to bring proceedings at the end of that period and argue that it has acted promptly”.

In assessing promptness, the Judge took into account that this case related to a major infrastructure project and is a development of national interest with substantial financing and construction arrangements involving many third parties. He decided that “the subject matter of the Claimant’s claim demanded particularly prompt action”. 

The Judge described the Claimant’s conduct as “dilatory throughout”. The Claimant didn’t send a pre-action letter of claim until 21 May 2025 and had received the Government’s interim response on 28 May 2025 but waited until 17 June 2025 — the final day of the three-month time period — to issue proceedings.

The Claimant argued that the scale of the development, substantial volume of documents involved and time taken to comply with the Pre-Action Protocol for Judicial Review explained the delay. The Judge rejected this, finding that those weren’t good reasons for failing to act promptly. He held that the Claimant had all the information needed to bring proceedings on the pleaded grounds approximately eight weeks before it eventually did so.

The Court therefore refused permission to apply for judicial review.

Key takeaways

The case is an important reminder to claimants not to delay when challenging a decision by way of judicial review, particularly when the decision relates to a major infrastructure project. Claimants should take advice, collate the relevant documents and engage in the pre-action requirements as soon as possible and then decide quickly whether or not to commence court proceedings.

Talk to us

Our award‑winning litigation team can guide you through the judicial review process, helping you to meet strict deadlines and avoid the pitfalls of delay. We’ll assess the strength of your case, advise on the best course of action and represent you at every stage to ensure that your rights are protected.

Talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing the contact form below.