Judicial Review

Judicial review is a procedure in English administrative law by which the courts supervise the exercise of public power on the application of any individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally

If you are unhappy with the decision of a public body you may be able to challenge the decision by taking judicial review proceedings in the High Court.

Common questions about Judicial Review:

Can the decision of any public body be challenged?

Judicial review can be applied for in relation to any public body, including government departments, local authorities, the police and any organisation exercising a public function.

On what grounds can decisions be challenged?

The grounds for such cases will usually be that the body acted illegally or irrationally or that the decision was reached unfairly because of a defect in the procedure which led to the decision.

What remedies are available?

The usual remedy if a case succeeds is that the public body will be ordered by the court to reconsider or change its decision. Damages may also be available in certain circumstances.

How is the review procedure initiated?

This is a very complex area of the law. If you believe that you have grounds for a Judicial Review of a decision made by a Public Body, you should contact us to discuss your circumstances in more detail.

Judicial Review Procedure:

An application for initial permission should be made to the High Court, which will only grant permission if there is an arguable case and the application is made within 3 months of the last decision being challenged.

The opponent in the case is served with the claim form and has the opportunity to file an acknowledgement of service not more than 21 days afterwards.

An application for permission is usually considered on papers by a single Judge.

There is no initial right to an oral court hearing, although if permission is refused then the applicant may request reconsideration by way of oral hearing before a Judge  at that stage.

Time limit for submitting a judicial review application ?

The timetable laid down in Court rules requires that an application for permission to be made expeditiously and in any event within three months (minus one day) of the decision complained of. The Court will sometimes exercise its power to extend that period but this is rarely the case. If you are contemplating an application for Judicial Review you should contact us right away because once your time limit expires you may be ‘time barred‘ from bringing your application to court.

Judicial Review Procedural requirements

Under the Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied:

  • The application must be made promptly and in any event within three months from the date when the grievance arose. Note that legislation can impose shorter time limits while a court may hold that an application made in less than three months may still be not prompt enough.
  • The applicant must have sufficient interest in a matter to which the application relates. This requirement is known as the requirement of locus standi, or standing.
  • The application must be concerned with a public law matter, i.e. the action must be based on some rule of public law, not purely tort or contract.

However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough. Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.

Grounds for review

The ‘grounds‘ upon which an application for Judicial Review may be brought were set out in a famous legal case called Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Lord Diplock summarised the grounds for reversing an administrative decision by way of judicial review as follows:

  • Illegality
  • Irrationality (Unreasonableness)
  • Procedural impropriety

The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself. Where any one of these ‘grounds’ exists the you may have a case for Judicial Review. For an explanation of meanings of these ‘grounds‘ see below:

Illegality

A decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common examples of cases where the courts hold administrative decisions to be unlawful are the following:

  • The decision is taken by the wrong person (unlawful sub-delegation)
  • Error of law or error of fact
  • The powers used for the purpose different from the one envisaged by the law under which they were granted
  • Ignoring relevant considerations or taking irrelevant considerations into account
  • Fettering discretion or failing to take into account certain policy or an individuals personal circumstances

Irrationality

A decision is irrational if it is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.” This standard is also known as Wednesbury unreasonableness, after the decision in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation. Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision “makes sense”. Often a case which fits into ‘Illegality’ will also be considered irrational.

Proportionality

Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. For example an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, such as by assigning an alternative route for the march. Proportionality is not as yet a separate ground of judicial review on it’s own, although lack of proportionality may be used as an argument for a decision being irrational.

Procedural impropriety

A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the ‘rules of natural justice‘ have not been adhered to.

Statutory procedures

An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry, or a consultation with an external adviser. Some decisions may be subject to approval by a higher body. Courts distinguish between “mandatory” requirements and “directory” requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.

Available Remedies

The remedies traditionally available in judicial review are the so called prerogative orders, formerly prerogative writs: certiorari, mandamus and prohibition. Certiorari quashes unlawful decisions; mandamus forces a public body to exercise its legal powers when it refuses to do so; prohibition orders the defendant to cease a course of action. In the language of the new Civil Procedure Rules, these orders are now known respectively as

the quashing order

the mandatory order; and

the prohibiting order

A claimant for judicial review may also seek an injunction, a declaration and/or damages

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