Judicial Review

What is Judicial Review?

Judicial Review is a remedy available in the Administrative Court (part of the High Court). There are now local centres where you may apply – including Manchester, Birmingham and Leeds, as well at the Royal Courts of Justice in London.

It is a remedy designed to keep a check on any public body carrying out a public decision-making function. It might be the Home Office, one of the Upper Tribunals, the Prison Service, a local authority or an Ombudsman, for example. There are many others, whose decisions can be challenged.

The Court has wide-ranging powers. It can quash (undo) a decision. It can grant an injunction, or even award damages. What the Court is looking for, in order for it to grant a remedy, is illegality, irrationality or gross unreasonableness. In effect, the Court is looking for a Claimant wishing to challenge a decision which, in effect, any rational person could not justify. It needs to be wholly unreasonable.

If you have an “interest” in the decision, and are therefore an “intertested party”, then you may be able to bring a claim for Judicial Review.

What should I do next?

Be wary before embarking upon a Judicial Review Application without seeking proper legal advice. We have access to the very best legal experts. You cannot ignore the threat of legal costs which we aim to avoid.

Prior to commencing proceedings, you ideally need to send a Pre-Action Protocol Letter to your opponent. This is a Letter before Action. This has a specific format and should, as far as possible, be sent. This is designed to avoid litigation and unnecessary costs. If that does not work, you then apply both for Judicial Review and Permission for Judicial Review on the same standard form. We can help you. You need to be clear which decision it is that you are asking the Court to review.

Similarly, you have to be aware of the three month time limit for applying. Indeed, you are under a duty to apply as promptly as possible. The time period can be extended, but only in fairly exceptional circumstances. If your Application for Permission is granted, then you proceed to a proper hearing in due course. If your Application is, however, refused, then you can choose to renew that Application and that is done in open Court (as against merely on paper, as with the original Application.)

There are rights of Appeal too. But the contents of your original Application are fundamental, for obvious reasons. We can help you. The other side might well respond to your Application in writing and you may respond similarly to what they have to say. You can represent yourself but we recommend against this, as our experience is that litigants in person can often be at a real disadvantage as against those who are legally represented and conversant with the proper practice and the Law.

When can I apply for judicial review?

Judicial Review is a common law remedy. The High Court is entitled to entertain challenges to the decisions of Government and other public bodies. The Supreme Court Act 1981 did not create the remedy, but merely regulated it. Public Law in England and Wales, however, cannot be viewed in isolation, without reference to European Community Law and European Human Rights Law.

• In order to bring a Claim, the first question to ask is whether you (the Claimant) have sufficient standing to proceed. Pursuant to Section 31(3) of the Senior Courts Act 1981, the Court can only grant permission for a Judicial Review if the Claimant has a “sufficient interest” in the matter to which the Application relates.
• The second pre-requisite, in order to bring an Application, is that all avenues of Appeal or alternative remedies have been exhausted. Judicial Review is a remedy "of last resort" and can therefore be declined on the basis that an alternative remedy may be available
• The third ingredient is that the alleged action or failure to act of which you complain must be that of either a public body or another body exercising a public function. To help with this definition, the Court will examine the functions it performs and whether those functions have public law consequences.

There are then a number of other relevant questions:

1. Is this the right time to challenge the decision?
2. Is there truly a reviewable act or omission of the Public Body?
3. What will Judicial Review achieve?
4. Can the outcome be achieved by some other route?

So in essence, in order to apply for Judicial Review, consider:

• Is this a public body, or a body carrying out a public function?
• Do you have an “interest” in the matter?
• Have you exhausted all other remedies?

Is there a time limit for applying?

Your Claim Form must be filed with the Administrative Court promptly and in any event not later than three months after the grounds upon which the Claim is based first arose (CPR Part 54.4). It is possible to apply to the Court for an extension of Time and that Application must be made on the same Form which you use for the Application itself. However, where a claim involves a challenge to an EU Directive, promptness is no longer a pre-condition. In normal cases, however, the application needs to be lodged promptly and, where possible, even well before the three months have expired. But be warned, in Planning Cases, the time period is generally 6 weeks. There are other specific cases where time limits are even shorter, so take great care.

What is the pre-action protocol?

The Pre-Action Protocol letter is a letter sent to your opponent(s) in a set form provided under the Court Practice Rules. The Protocol sets out a Code of good practice designed to avoid unnecessary litigation and wasted legal costs. Parties should generally follow the steps set out in the Protocol. The Letter is in effect a Letter before Action giving an opportunity to resolve matters without the necessity of incurring unnecessary legal expenditure.

• The issues in dispute;
• Whether and on what terms litigation can be avoided;
• The date and details of the decision, act or omission being challenged;
• A summary of the relevant facts

The Letter should ideally give 14 days’ Notice to the other party (“The Defendant(s)” Wherever possible, this letter should be sent, and you should wait for the response, if any, before bringing your Claim. However, you still need to bring your claim promptly and, where it is urgent, you may have to take the decision to dispense with the Letter. It might also be inappropriate where a Defendant does not have the legal power to change the decision in any event which is being challenged. Your Claim for Judicial Review must indicate whether or not the Protocol has indeed been complied with. If not, you need to state why.

What remedies are available in a judicial review hearing?

If the Court hearing a Judicial Review Case grants the Application, there are six possible remedies as follows:-

• Quashing Order – striking out the original decision, and requesting the public body to take the decision again, lawfully;
• Mandatory Order – ordering the Public Body to do something it has to do;
• Prohibiting Order – forbidding the Body from doing something unlawful in the future;
• Declaration – for example declaring that a legislative provision is incompatible with the Human Rights Act;
• Injunction – a temporary remedy pending the hearing of the full Application for Judicial Review;
• Damages – may be available, particularly where there has a been a breach of an individual’s rights under the Human Rights Act.