Judicial Review

What is a Judicial Review
A Judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. It is a challenge to the way in which a decision has been made. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. Claims for judicial review must be brought promptly within three months of the event complained of. Judicial review is appropriate only if there is no alternative remedy which could solve the problem. If you want to argue that the decision was incorrect, judicial review may not be best for you.

Judicial review looks at the lawfulness of actions and decisions. These can be challenged on a number of grounds, which are usually described as:

• illegality
• irrationality
• unfairness

Illegality
Public bodies must correctly understand and apply the law that regulates their decision making powers. An action or decision may be unlawful if the decision maker had no power to make it or exceeded the powers given to him/her. Four kinds of illegal activity may be identified :

• refusing to act in a certain way in a mistaken belief that the law does not allow the body to act in that way
• misuse of discretion- e.g. using a discretionary power for the wrong purpose or in the wrong circumstances, or putting unlawful limits on the exercise of discretion (often called fettering of discretion and typically applying a local policy rigidly)
• taking irrelevant factors into account or failing to take account of all relevant factors
• failing to take account of the Human Rights Act 1998. This short guide cannot deal with the details of the 1998 Act.

Irrationality
The court can reverse a decision if it is so unreasonable as to be "perverse" or "irrational". Arguing that a decision is irrational is extremely difficult and such claims are usually linked to challenges based on illegality and/or unfairness, if this is possible.

Unfairness
This deals with the process for reaching a decision and includes the right to a fair hearing (which includes the rule against bias). Also the courts have recently extended the idea of fairness to prevent abuses of power where public bodies have sought to go back, without sufficient justification, on promises made (called 'legitimate expectations').

The sort of public bodies whose decisions may be challenged include:

• government ministers and departments
• local authorities & health authorities
• chief constables & prison governors
• some tribunals (but not if you can appeal to a higher tribunal or court)
• magistrates, coroners and county courts
• boards of school governors (but not independent schools)

Successful review Orders
If an application for judicial review is successful, the court can grant a remedy by making one of six orders:

• quashing order
• prohibiting order
• mandatory order
• declaration
• injunction
• damages.

Quashing order
This is the most commonly requested remedy. It overturns an invalid decision that has already been made. The public body must then take the decision again applying the proper legal test or following a fair procedure.

Prohibiting order
This prevents a public body from taking an unlawful decision or action - for instance, to prevent the Home Office from deporting someone whom it has wrongly decided is an illegal immigrant.

Mandatory order
This order requires the performance of a duty, either an action the body has a duty to perform or the duty to reach a discretionary decision. For instance the court may order the public body to consider an application for a benefit when it has failed to do so (though the court cannot require that a specific decision is made, such as ordering that benefit be paid).

Declarations
The court may simply declare what the law is, or declare the respective rights of the parties, without making any other order.

Injunctions
prevent an illegal act or enforce the performance of a duty. Since a prohibiting and mandatory orders serve similar purposes, injunctions are relatively rare. However, they are sometimes granted at the permission stage of the proceedings as a temporary order made before the court considers the case fully at the final hearing. For example, an injunction can be sought at an early stage to require a local authority to continue to provide community care services in a case disputing the lawfulness of withdrawal of those services.

Damages
Before the Human Rights Act came into force, damages were rarely awarded in judicial review and were not available to compensate people who had unlawful decisions made against them. Damages may now be awarded where a public body has unlawfully interfered with your human rights.

Even if the court accepts that a public body has acted unlawfully, there is no right to any of the remedies. Any order is at the absolute discretion of the court, taking into account such factors as whether the applicant has acted promptly and in good faith; and suffered any substantial hardship.

Legal Aid
Public funding for legal costs in judicial review is available from legal professionals and advice agencies which have contracts with the Legal Services Commission as part of the Community Legal Service. If funding is available, it is a very important asset for the claimant because it covers his or her own costs and will usually protect him or her from paying the defendant's costs should the case be lost.Funding may be provided for:

• Legal Help to provide initial advice and assistance with any legal problem
• Legal Representation to allow you to be represented in court if you are taking or defending court proceedings. This is available in two forms:
  • Investigative Help is limited to funding to investigate the strength of the proposed claim. It includes the issue and conduct of proceedings only so far as is necessary to obtain disclosure of relevant information or to protect the client's position in relation to any urgent hearing or time limit for the issue of proceedings. This includes the work necessary to write a letter before claim to the body potentially under challenge, setting out the grounds of challenge, and giving that body a reasonable opportunity, typically 14 days, in which to respond.
  • Full Representation is provided to represent you in legal proceedings and includes litigation services, advocacy services, and all such help as is usually given by a person providing representation in proceedings, including steps preliminary or incidental to proceedings, and/or arriving at or giving effect to a compromise to avoid or bring to an end any proceedings. Except in emergency cases, a proper letter before claim must be sent and the other side must be given an opportunity to respond before Full Representation is granted.

How to start a Judicial Review
Where a public body has taken a decision or action which you think is unlawful, and if there is time, it is essential to write to the public body. This should be done by a lawyer who specialises in judicial review if possible and should:

• explain in detail where it is alleged the public body has gone wrong
• ask for detailed reasons for the decision within a time limit- e.g. 14 days
• threaten judicial review if these are not forthcoming, or are unsatisfactory.

This "letter before action" may often encourage the public body to put matters right and 'settle', saving time and money. If time is short, it is still a good idea to make telephone contact with the public body.

All claims for judicial review are heard at the Administrative Court in central London. Claims for judicial review are made in two stages:

Stage 1: Permission stage
This allows the court to filter cases by deciding which should be allowed to go to a full hearing. The permission stage is decided on the basis of a written claim and will involve a fairly brief look at the case to decide whether:

• there is an arguable case
• the case has been brought promptly or if any delay can be justified

The claimant must prepare all the papers at this stage. A court fee of £50 is payable. The judge will read the documents and will decide whether to grant permission. The decision will be notified by post and very short reasons may be noted if permission has been refused.

Stage 2: Full hearing
The claimant must pay a further fee of £180 within 7 days of the decision to grant permission. The judge may also make an order concerning the way in which the case should proceed, called case management directions.

When all parties are ready, and when the court has time available, the case is listed for a full hearing at which argument by both sides is heard by the court. Claimants currently wait between 6 months and 1 year for a case to go to a full hearing, though urgent cases can be heard within 24 hours if necessary.
However, the first ‘permission’ stage of the proceedings may only take a few weeks and many cases are "settled" following the decision of the court to grant permission. Very often making a claim will encourage a previously unresponsive defendant to review the matter, as they can see that you mean business. A public body's concentration on the issues involved will be increased even more if permission is granted.

Judicial Review form Judicial Review leaflet

 

This Page Was Last Updated

Friday 23 June, 2006 11:45

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